No. 83-44 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM LEE "RANDY l1 CLARK, 

Defendant and Appellant. 

APPEAL FROM: aistrict Court of the Seventeenth Judicial District, 

In and for the County of Phillips, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Francis J. McCarvel, Glasgow, Montana 

David L. Irving argued, Glasgow, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Eelena, Montana 

Jim FlcLean argued, Asst. Atty. General, Kelena 

Willis M. McKeon, County Attorney, Malta, Montana 

Filed: 

- - 

Submitted: November 29, 1983 

Decided: Xay 8, 1984 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant appeals from a jury verdict and judgment 

finding him guilty of eight counts of sexual intercourse 

without consent. We affirm the jury verdict and the judgment 

of the District Court. 

The issues on appeal are: 

(1) Did the trial court err in allowing the defendant 

to be charged and tried on the amended information? 

(2) Did the trial court err in excluding opinion 

testimony of defendant's professional investigator? 

(3) Was the State's cross-examination of defendant's 

character witness, Larry Simpson, improper? 

(4) Did the State improperly impeach defendant's 

testimony by using irrelevant, prejudicial evidence during 

cross-examination? 

(5) Was the testimony of State rebuttal witness, Dr. 

William Stratford, properly allowed? 

Defendant was reunited with his wife and three 

step-children in Saco, Montana on April 4, 1981, after 

serving thirteen months at the Lompoc Federal Penitentiary in 

California. Defendant's 9 year old son by a previous 

marriage also came to live with the family. Defendant's 

wife, Mary, worked full-time and defendant did odd jobs and 

ranch work. 

During a family argument on the evening of July 6, 1981, 

defendant's 12 year old step-daughter, T., told Mary that the 

defendant had raped her. The argument intensified and the 

defendant battered both T. and her mother. Mary left with 

her three children and drove to New Orleans. After receiving 

psychological counseling in New Orlean's, T. and Mary 

returned to Montana to institute criminal charges against the 

defendant. 
Defendant was arraigned on December 17, 1981 on an 

information charging him with eight counts of sexual 

intercourse without consent. The information specified the 

days on which the alleged rapes occurred. Defendant pled not 

guilty. On March 9, 1982, defendant filed notice of an alibi 

defense. On April 9, 1982, the State noticed its intent to 

amend the information. Defendant objected to the amended 

information, which alleged the time of the rapes less 

precisely than the original information. The trial jud.ge 

permitted the amended information to be filed and defendant 

again pled not guilty on April 23, 1982. Trial by jury began 

July 27, 1982. 

T. testified that she was a seventh grader in 1981. The 

defendant first approached her three days after he came home 

from prison. He came into her bedroom, put his arm around 

her, and tried to kiss her while her mother was in the 

shower. T. pulled the covers up around her and defendant 

left her bedroom. Five to eight days later, defendant called 

T. into his bedroom around 4:00 or 4:30 in the afternoon, 

while Mary was still at work. He bolted the door with a lock 

T. could not reach and had intercourse with her. T. 

testified that this happened again and continued to occur 

until July 6, 1981, when Mary and the children left for New 

Orleans. T. explained that she did not tell anyone because 

she was "scared of him beating us and . . . scared to hurt my 

mother." T. testified the ra.pes usually took place in her 

mother's bedroom, sometimes in her own bedroom and once in 

the attic. She testified that it happened twice or more a 

week, sometimes four times a week, and more than once a day 

on two occasions. According to T., defendant repeatedly 

warned her not to tell anyone. 
T. testified that the defendant had intercourse with her 

"approximately 40" times. She explained that she had 

originally picked specific dates "to get it over with" and 

that she had told the County Attorney it happened 8 times 

because she "was ashamed of how many times it really 

happened." She said she later told the State prosecutor 40 

times "because it was bugging me because I didn't have the 

truth out. " 

T.'s testimony was corroborated in part by her brother, 

who was 9 years old in 1981. Her brother testified that 

defendant would tell the three younger children to go to the 

park, but tell T. to stay home. When they came back and the 

doors were locked, the children usually returned to the park. 

Once T's brother got a boost from his step-brother to look in 

the windows to see if anyone was home. In his mother's 

bedroom, he "saw Randy and T . . . laying in on the bed." He 

admitted on cross-examination that he could not see through 

the gauze curtain well enough to tell whether they were 

dressed. 

Both T. and her mother testified that on the evening of 

July 6, 1981, when Mary confronted defendant with T's 

statement that he had raped her, defendant turned to T. and 

asked, "Why did you tell her?" Both testified that Mary 

asked if T. had been a virgin, and the defendant replied, 

"Wel-1, it1 s too late now." Both Mary and T. testified that 

defendant physically assaulted them before they left the 

family home that night. Mary's sister testified that Mary 

arrived in New Orleans with scratches, finger marks on her 

neck, a hand imprint on her face, bruises down her side and a 

huge lump on one leg. T. had marks around her face and her 

glasses had been twisted and broken. 
Defendant testified that "there was no violence in our 

house that night. There was never any violence in that 

house." He denied battering his wife and step-daughter. He 

testified that they had argued, but no allegation of rape was 

ever made. According to defendant, the problem was that T. 

thought she was pregnant. He insisted that Mary later 

contrived the charges and coerced T. and her brother to 

testify against him. He denied ever having raped T. 

The jury returned a guilty verdict on each of the eight 

counts of sexual intercourse without consent. Judgment was 

entered designating defendant a dangerous offender and 

sentencing him to 30 years imprisonment at the Montana State 

Prison on each count, with the eight 30-year terms to run 

concurrently. Defendant appeals. 

I. 

Did the trial court err in allowing the defendant to be 

charged and tried on the amended information? 

Defendant asserts that (1) the amended information is 

not sufficient as a charge, and (2) allowing the information 

to be amended after defendant pled not guilty and noticed an 

alibi defense prejudiced his substantial rights. 

Defendant initially objected to the amended information 

because it alleged the time of the rapes less precisely than 

the original information. The original and amended 

informations set forth the times as follows: 

COUNT ORIGINAL INFORMATION AMENDED INFORMATION 

(filed October 23, 1981) (filed April 23, 1982) 

I On or about May 19, 1981 Week of April 12, 1981 

I1 On or about May 23, 1981 Week of April 19, 1981 

I11 On or about May 26, 1981 Week of April 19, 1981 

(different occasion than 

that alleged in Count 11) 

IV On or about May 27, 1981 Week of April 26, 1981 
On or about May 29, 1981 

On or about May 30, 1981 

(early evening) 

On or about May 30, 1981 

(about midnight) 

Week of May 3, 1981 

Sometime during weeks of 

May 10, 1981 through June 

21, 1981 

Sometime during weeks of 

May 10, 1981 through June 

21, 1981 (different 

occasion than that alleged 

in Court VI) 

VIII On or about July 3, 1981 Week of June 28, 1981 

Defendant contends that his substantial rights were 

prejudiced when the trial court allowed the amended 

information to be filed after he had pled not.. guilty to the 

original information and noticed an alibi defense. He claims 

the amended information effectively precluded any alibi 

defense because periods of time were substituted for specific 

days. Defendant concedes that generally time is not a 

material element of the offense of sexual intercourse without 

consent. However, here the amended information covers almost 

all of the three months the family was together, as opposed 

to seven specific dates. 

The State argues that because the victim was a 12 year 

old child who was unable to pinpoint dates, the times stated 

in the amended information were stated as definitely as 

humanly possible. The State argues that to demand that a 

child specify the hour and date of each instance of sexual 

abuse in the home is to demand the impossible. The State 

amended the information because the prosecutor discovered 

that T. had based her original dates on an incorrect belief 

that the defendant had returned home in May, instead of 

April, 1981. The amendments do not change the nature of the 

offenses charged, only the times of the offenses. 

Section 46-1-40 (1) v , MCA requires that an 

information state "the time and place of the offense as 

definitely as can be done." The law does not, however, 
demand impossible precision. In the homicide case of State 

v. Riley (Mont. 1982), 649 P.2d 1273, 39 St.Rep. 1491, this 

Court upheld the sufficiency of an information charging 

various acts of child abuse over a period of two years. 

"The law does not require that the time and place 

be stated with impossible precision; it merely 

requires that they be stated as definitely as 

possible under the circumstances of the case, 

unless time is a 'material ingredient in the 

offense. ' See State v. Heaston, 109 Mont. at 307, 

97 P.2d at 332. Here the information alleges a 

continuing course of abusive conduct towards James 

Gill, beginning when his family joined the River of 

Life Tabernacle group and culminating with the 

boy's death on January 9, 1981. When such a 

continuing course of conduct is alleged, further 

specificity is not required." Riley, 649 P.2d at 

1277, 39 St.Rep. at 1496. 

In judging whether the amended information here states 

the time of the alleged offenses with sufficient 

particularity, the court must determine (1) whether time is a 

"material ingredient in the offense," and (2) whether a 

continuing course of conduct is alleged. 

Both the original and the amended information set forth 

facts alleging a series of incidents of unlawful sexual 

contacts perpetrated by the step-father upon the child. 

Incestuous conduct is charged as a series of offenses of 

sexual intercourse without consent with the same minor 

victim. 

Incest generally involves a continuing course of sexual 

conduct between two family members within the family home. 

Incestuous conduct usually consists of a series of unlawful 

sexual contacts between an adult family member and a child. 

In these respects, sexual offenses committed against a minor 

by a parent or step-parent are distinguishable from rape 

cases involving adult victims and a single criminal event in 

unfamiliar surroundings. In addition, children are less 

likely to distinguish dates and times with specificity. 
These distinctions are relevant to our consideration of the 

sufficiency of the amended information. 

Defendant concedes that time is not a "material 

ingredient" in the offense of sexual intercourse without 

consent with a minor. Since time is not a material 

ingredient in statutory rape, "the information need only be 

specific enough to enable the defendant to prepare his 

defense and to protect him from being subsequently prosecuted 

for the same offense." State v. Roberts (Idaho 1980), 610 

P.2d 558, 559. Defendant argues, however, that time became 

material once he noticed his alibi defense. 

The argument that noticing an alibi defense confers 

materiality and makes time a necessary element of the State's 

case was addressed in State v. Hall (1976), 171 Mont. 33, 554 

P.2d 755. Defendant Hall, was charged by information with 

first degree burglary and grand larceny "on or about the 19th 

day of August, 1973." He pled not guilty and filed a notice 

of intent to rely on an alibi defense. At trial, the State 

offered evidence that the burglary and larceny could have 

occurred anytime between August 17 and August 20, 1973. 

Defendant's alibi witnesses testified as to the period from 

August 18 through 20, but no alibi testimony was presented 

regarding August 17. The jury returned a guilty verdict. 

On appeal Hall argued, as defendant does here, that 

notice of intent to rely on an alibi defense gives the State 

notice that time may become an essential. fact of proof 

required to convict the accused. This Court concluded: 

"Assertion of the alibi defense does not change the 

nature of the crime charged here. Defendant should 

have realized the State would present evidence 

proving the crime took place sometime in the period 

between shutdown of the camp and discovery of the 

breakin. Defendant cannot restrict the state's 

case by merely asserting intent to rely on an alibi 

defense for a limited period of time within which 
the crime could have occurred." Hall, 171 Mont. at 

36, 554 P.2d at 757. 

The defendant here had notice of the nature of the 

charges against him and adequate opportunity to defend. He 

did not request postponement of the trial date after the 

district court granted leave to file the amended information. 

Defendant presented two alibi witnesses and a witness who had 

investigated the charges contained in the original 

information. 

Noticing an alibi defense to the original information 

did not change the nature of the charges against defendant or 

incorporate time as a necessary element of the State's proof. 

We conclude, as the Idaho Supreme Court did in State v. 

Rogers (Idaho 1929), 283 P. 44, 45: 

"It would be a very weak rule of law that would 

permit a man to ravish a fifteen year old 

girl . . . and then say in effect: 'You cannot 

convict me of this crime, as you did not guess the 

right date.'" 

We hold that the amended information stated the time and 

place of the charged offenses as definitely as could be done 

under the circumstances of this case. Having concluded that 

defendant's assertion of an alibi defense did not change the 

nature of the offenses charged a.gainst him, we hold that the 

trial court did not err in allowing the defendant to be 

charged and tried on the amended information. 

Did the trial court err in excluding testimony of Don 

Goddard, defendant's professional investigator? 

Defense counsel hired Don Goddard to investigate the 

charges alleged in the original information. Goddard 

testified that he talked to at least 35 or 40 people, 

reported to defense counsel, and was advised that an alibi 
defense would be made based on his investigation of the 

original dates and times. 

Goddard testified that he had worked as an insurance 

adjuster for 17 years after retiring from the Air Force, but 

that he also did legal investigations. He also testified 

that he attended "a course conducted by the Inspector General 

of the United States Air Force, for nine weeks, or 

approximately nine weeks, where the emphasis was on 

investigative procedures and reports writing," and that he 

did 2 or 3 investigations for criminal defense lawyers each 

year. 

The trial court sustained the State's objection when 

defense counsel asked Goddard whether his investigation 

established that defendant was not home at those times 

specified in the original information. The State asserted 

that the question lacked relevancy since defendant was being 

tried on the amended information. Defense counsel argued 

that Goddard's testimony regarding alibi evidence was 

relevant to impeach T. 's testimony. The trial court refused 

to allow Goddard to synopsize evidence gleaned from the 

approximately 40 persons whom Goddard had interviewed during 

his investigation. In ruling that Goddard could not testify 

that other witnesses had furnished defendant with a perfect 

alibi to the original information, the trial court noted that 

defense counsel could still argue to the jury that T. changed 

her story and the original information was amended after the 

original charges were investigated. 

The assertion that Goddard was called as an expert 

witness is made for the first time on appeal. Since no such 

assertion was made during the trial, the adequacy of 

Goddard's qualifications to testify as an expert was not 

challenged. Even if he were qualified by knowledge, skill, 
experience, training or education to testify as an expert 

witness, the subject matter of his proposed testimony does 

not require expert testimony. Rule 702, M.R.Evid., permits 

opinion testimony by an expert where "scientific, technical, 

or other specialized knowledge" is involved. Goddard ' s 

proposed testimony about defendant's alibi defense and the 

victim's credibility did not involve scientific, technical or 

specialized knowledge. Goddard's proposed testimony about 

the results of his investigation was not a proper subject 

matter for expert testimony. 

Rule 701, M.R.Evid., permits lay witnesses to testify 

about their opinions as long as those opinions are based on 

their own perceptions. Goddard's proposed testimony was not 

based on his own perceptions. He proposed to summarize alibi 

evidence gathered from interviewing other persons regarding 

the crimes charged in the original information. Alibi 

evidence is properly presented by witnesses testifying as to 

their own opinions and perceptions. The jury is just as 

qualified as an investigator to draw inferences and 

conclusions from evidence of alibi. 

In addition to Goddard, the defense presented two actual 

alibi witnesses to the jury. Irving Simpson testified that 

defendant often worked at his ranch during the evenings and 

spent five days on the range with him in the later part of 

May. Walter Pekovich testified that he often jogged and 

lifted weights with defendant in the evenings. We note that 

the testimony of these alibi witnesses falls far short of 

investigator Goddard's proposed summary of witness 

statements. 

We hold that the trial court properly excluded hearsay 

and opinion testimony of defendant's investigator, Don 

Goddard. 
I11 

Was the State's cross-examination of defendant's 

character witness Simpson improper? 

Irving Simpson testified as a character witness for the 

defendant. Simpson had known defendant for three years and 

had used him as a hired hand on his ranch in 1979 and 1981. 

On direct examination, Simpson testified at length as to the 

defendant. His testimony was strongly supportive of the 

defendant. In substance, he testified that the defendant was 

a top ranch hand; that he was good with animals; that Simpson 

had never seen the defendant "abuse nothin"; that once 

Simpson saw a horse rear and hit the defendant hard in the 

nose, but the defendant "didn't get violent or nothin like 

most guys would"; that the defendant liked to have his 

family, including the children, with him while he worked; 

that he liked his kids very much and he never raised his 

voice to them; that he was a faithful worker who continued to 

work regardless of the time of the day and would return in 

the evening when necessary; that when Simpson was involved in 

a protest on adjoining federal land, the defendant, who was 

on parole at the time, insisted on riding side-by-side with 

Simpson; that he suffered personal injury and discomfort 

without complaint; that he was frequently a guest at the 

Simpson house and was "real polite"; that they were very good 

friends and had no arguments or fights. On 

cross-examination, Simpson indicated that he would trust the 

defendant with anything of his and that he never did catch 

the defendant lying to him. On redirect examination, Simpson 

testified that as far as he knew, the defendant had never 

lied to him. With regard to defendant's peaceful or violent 

nature, Simpson testified on redirect examination: 

"Q. Would you describe Randy as a violent man? 
"A. No. I never have seen him raise his voice, 

scream at the kids or cattle or anything. 

"Q. Physically abuse anyone? 

By this evidence defense counsel placed in issue the 

character of the defendant with regard to truthfulness and 

non-violence or peacefulness. 

With regard to the opinions expressed by witness Simpson 

on redirect examination, he was examined by the State on 

recross-examination as follows: 

"Q. If there were any instances of violence, would 

that change your opinion at all? 

"A. oh, you bet, yah. 

"Q. What if they occurred prior to the time that 

you knew him? 

"A. It would change my opinion. 

"Q. It would change your opinion? 

"A. Yah. 

"Q. If you knew that he had done - committed some 

violent crime? 

"A. Yah. 

"Q. Would it change your opinion of him as a 

friend and as a person, if you knew that he had 

lied to you? 

"A. Yup. 

"Q. Would it bother you if you found out that he 

had lied to you about being a prisoner of war? 

Would that change your opinion of him? 

"A. I imagine it would, yes, mmhm." 

In chambers, counsel for the State and defense counsel 

then discussed the nature of the examination planned by the 

State. The State pointed out that under Rule 405(b), 

M.R.Evid., when a defense witness presents favorable opinion 

evidence to the jury, the State is entitled to challenge the 

witness' basis for knowledge. The State contended it was 

entitled to test Simpson's opinion by inquiring whether he 
knew that the defendant had been convicted of armed robbery 

and that he forcibly escaped from jail by overpowering a 

jailer. While defense counsel suggested that perhaps 

testimony should be limited to the same period of time about 

which witness Simpson had testified on direct and redirect 

examination, no objection was made to this type of evidence. 

In substance the State then inquired of witness Simpson 

whether his opinion of the defendant, as non-violent, 

trustworthy and believable, would change if he knew (1) that 

in October, 1975 the defendant was convicted of first degree 

robbery in the state of Kentucky; (2) that he attempted to 

hijack an airplane while in Vietnam, assaulted the pilot with 

a .45 caliber pistol and threatened to kill him; (3) that a 

month after the incident with the airplane, he burned down a 

prison cell block and escaped in Vietnam; and (4) while in 

custody in Great Falls, he overpowered a jailer, sprayed him 

with a fire extinguisher and escaped from jail. Simpson 

indicated that his opinion might change in connection with 

some of these points. 

The State then asked if he knew that the defendant was 

never a prisoner of war. At this point, defense counsel 

objected that no record of these facts existed. Counsel for 

the State stated, "Ethically I'm bound to have prima facie 

showing that this is in fact true, and I state as an officer 

of this court that I can establish that." The court allowed 

the State to proceed. Defense counsel made no further 

objection. 

Witness Simpson further testified: 

"Q. So if those things were true, Mr. Simpson, you 

would have an entirely different view of the 

Defendant, would you not? 

"A. Yes, if I knew that they was true - if I knew 

it when I hired him, I wouldn't have hired him. 
"Q. I know that. But if you found that they were 

true now, your opinion would change drastically 

wouldn't it? 

"A. Yah, it would. 

"Q. And you would feel like you had been taken to 

the cleaners, wouldn't you? 

"A. Yes. 

Defendant contends that inquiring into these specific 

instances of conduct was improper cross-examination. He 

argues that the alleged conduct was unrelated to the crime 

charged and irrelevant. He also argues that if the conduct 

is deeme.d to be relevant, then its prejudicial effect 

outweighs any probative value. 

The State contends that the defense opened the door by 

placing defendant Is character traits of honesty and 

peacefulness in issue. The State further contends the 

cross-examination properly tested the credibility and 

reliability of Simpson1s direct testimony that the defendant 

never lied and was not a violent man, and that all its 

challenged questions were within the scope of direct 

examination. 

Admissibility of evidence on relevancy grounds is 

governed by Rules 401 through 411, E'l.R.Evid. Character 

evidence is generally not admissible. Rule 404, M.R.Evid. 

However, where the accused offers evidence of a pertinent 

trait of his character, then evidence is admissible by the 

prosecution to rebut the same. Rule 404 (a) (1) , M. R.Evid. The 

prosecutor is permitted to cross-examine the witness to test 

the witness1 grounds of knowledge. 

The method of proving the evidence of a pertinent trait 

of the defendant's character is provided in Rule 405, 

M.R.Evid., which covers proof by testimony as to reputation 

or testimony in the form of an opinion: 
"(a) Reputation or opinion. In all cases in which 

evidence of charaFter or a trait of character of a 

person is admissible, proof may be made by 

testimony as to reputation or 9 testimony -- in the 

--- form of an opinion. On cross-examination, inquiry 

- is allowable into relevant. s~ecific L instances - of 

conduct." (emphasis added) 

Although the majority of jurisdictions have made reputation 

the exculsive mode of proof, Montana follows the modern trend 

to accept both reputation and opinion. 7 Wigmore, Evidence 

51983 (Chadbourn Rev. 1978) at 215. 

Simpson testified at length and in detail as to the 

defendant's character with particular emphasis on his 

truthfulness and peacefulness. Defendant denied having 

sexual relations at any time with T. and denied any act of 

violence towards T. As a result, questions regarding 

defendant's character traits of truthfulness and peacefulness 

pertain to the key parts of his defense. It was appropriate 

that the State inquire on cross-examination. 

The leading ca.se on the scope of cross-examination of a 

character witness is Michelson v. United States (1948), 335 

U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. While the testimony 

involved in Michelson was testimony regarding the reputation 

of the defendant, the principles enunciated by the Court are 

applicable. The United States Supreme Court discussed 

several critical factors, including (1) that the trial court 

took pains to ascertain that the prior crime was an actual 

event; (2) the trial court instructed the jury to consider 

the inquiry only for the limited purpose of evaluating a 

witness ' s testimony; (3) there was no specific objection made 

by the defense attorney. The other factors discussed by the 

Court are not pertinent. 

Our Rule 405, M.R.Evid. is a development that extends 

beyond the type of evidence allowed in Michelson in 1948, 

when evidence of character was presented by evidence of 

reputation only. Rule 405, a more modern rule, allows 
character evidence to be presented through testimony in the 

form of an opinion as well as testimony as to reputation. 

Rule 405 (a) , M.R.Evid. specifically allows the inquiry on 

cross-examination into relevant, specific instances of 

conduct. 

Here, the prosecutor's questions all dealt with specific 

instances of conduct which had a direct relationship to the 

character traits of truthfulness and non-violence or 

peacefulness. The cross-examination was specifically 

allowable under the rules. The only objection made by 

defense counsel was to the absence of a record showing the 

defendant was never a prisoner of war. In response, the 

prosecution stated as an officer of the court that this could 

be established as true. No further objection was made by 

counsel for the defendant. No specific objection was made by 

the defense attorney to the whole line of questioning. The 

trial court carefully instructed the jury to consider the 

inquiry only for the limited purpose of evaluating the 

opinion. The Michelson factors were properly considered. 

We hold that the questioning on cross-examination of 

character witness Simpson was within the scope of the direct 

examination, consisted of inquiry into relevant, specific 

instances of conduct as authorized under Rule 405, and was 

proper to impeach the witness1 opinion testimony. 

IV 

Did the State improperly impeach defendant's testimony? 

Defendant contends that he was improperly cross-examined 

on many separate, collateral crimes or wrongs that were 

irrelevant. In the alternative, he contends that even if 

this evidence were relevant, the combined prejudicial effect 

upon the jury outweighed any probative value. 

The State contends that the prosecutor properly 

impeached defendant's character evidence and his defense 
theory that Mary Clark fabricated evidence in order to frame 

him. The State further contends that evidence regarding 

defendant ' s military history was admitted to rebut 

defendant's direct testimony. 

Rule 403, M.R.Evid. provides for exclusion of otherwise 

relevant evidence: 

"Although relevant, evidence may be excluded if 

its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence." 

A key element of this rule is the trial judge's discretion to 

decide whether otherwise relevant evidence is to be excluded 

because of the factors listed in the rule. See Commission 

Comments, Rule 403, M.R.Evid. The court has a duty to 

conduct the tria.1 in a fair manner and has a great amount of 

discretion in so doing. State v. Dickens (Mont. 1982), 647 

P.2d 338, 341, 39 St.Rep. 1137, 1140; State v. LaMere (Mont. 

1980), 621 P.2d 462, 466, 37 St.Rep. 1936, 1941. 

On direct examination, the defendant testified to the 

following collateral crimes or wrongs: While in Vietnam in 

1968, he boarded a plane with an automatic pistol and without 

a pass, walked to the cockpit, locked the door and talked to 

the pilots for three hours, trying to convince them to take 

him to Hong Kong. He escaped from the brig and lived in the 

Chinese section of Saigon for 116 days. During that time he 

was held as a prisoner by the North Vietnamese for 2 days. 

He was never officially classified as a prisoner of war 

because he was on desertion status at the time. Defendant 

escaped from a maximum security federal mental institution 

upon his return to the United States in 1963 and was in five 

psychiatric hospitals before receiving an honorable discharge 

and medical retirement from the military. He pled guilty to 

robbery of a motor vehicle and escape in 1975 and guilty to 
transporting a stolen car across state lines and jumping bond 

in 1979. 

Defendant also testified on direct examination to the 

following acts of misrepresentation: He told people in Saco 

that he received income from his father's business because he 

did not want to say he received a $1,733 per month disability 

pension from the Veterans Administration. He told Roy Sauder 

that he was "a qualified group therapist," so he could work 

at a youth camp helping delinquent juveniles. He told Ed 

Kelsey that he had studied veterinary medicine so Roy would 

agree to destroy a horse at the youth camp. He told a U. S. 

Department of Interior secretary that he was an attorney 

trying to talk with Secretary Watt. Defendant characterized 

these misrepresentations as doing favors for friends and 

concluded, "I did nothing malicious by misrepresenting 

myself to anybody." 

Regarding his home life, defendant testified on direct 

examination that "there was never any violence in that 

house. " He denied hitting Mary. He contradicted T's 

testimony that he hit her in the face with the telephone. He 

testified he "never laid a hand on those kids." He denied 

the charges against him, testifying that he never in his life 

had sexual intercourse with or abused T. 

On cross-examination, defendant denied that he had 

actually threatened anyone in the 1968 airplane incident in 

Vietnam, but he admitted that he had pled guilty to 

hijacking, assaulting the pilot and crew, and carrying a 

concealed weapon. He admitted to escaping from the brig and 

pleading guilty to desertion, then altering his own military 

records to reflect that he had been a prisoner of war. He 

also admitted to pleading guilty later to escape, mutiny and 

arson while in the service. 
In contradiction to defendant's assertion that he only 

lied to do favors for friends, he admitted on 

cross-examination that he had falsified a birth certificate 

to obtain a driver's license. In contradiction to his 

characterization of himself as a nonviolent, nonabusive 

individual, defendant admitted that he had written letters to 

Mary after his arrest threatening to kill her. 

It is a well-settled rule that the proper scope of 

cross-examination is determined by the scope of direct 

testimony. Here, the defendant offered direct testimony 

about specific instances of past conduct. As part of his 

defense, he reiterated these instances and attempted to 

explain any conduct from which the jury might conclude that 

he was not a peaceful, honest man, who had been repeatedly 

wronged by circumstances beyond his control. 

Defendant specifically challenges the prosecutor's use 

during cross-examination of letters he admitted writing to 

his wife. These letters were of a threatening nature. They 

were not offered or admitted into evidence, and no objection 

to their use was made by defense counsel at trial. Defendant 

a.sserts that, even absent objection, cross-examination 

regarding the letters was reversible error in that it 

confused and prejudiced the jury in violation of Rule 403, 

M.R.Evid. We disagree. 

Cross-examination tending to prove that the defendant 

had attempted to intimidate Mary Clark went to the heart of 

the defense theory that Mary had coerced her children and 

perjured herself in order to frame the defendant. In State 

v. Shaw (Mont. 1982), 648 P.2d 287, 39 St.Rep. 1324, this 

Court stated that " [iln a criminal prosecution any attempted 

intimidation of a witness is properly attributable to a 

consciousness of guilt and testimony relating thereto is 
relevant and admissible in evidence." 648 P.2d at 289-90, 39 

St.Rep. at 1327, quoting People v. Smith (1972), 3 Ill.App.3d 

958, 279 N.E.2d 512, 513. We conclude that this rule applies 

to documentary evidence as well as to testimony. We find no 

abuse of discretion in the trial court and hold that it was 

not error to permit cross-examination on this element of the 

defense theory. 

Secondly, defendant challenges admission of State's 

Exhibit 21, a detailed psychological report supposedly from 

Bethesda Naval Hospital. Defense counsel objected to 

admission of the report into evidence on the grounds of 

relevancy, after defendant had identified the document and 

admitted that he had fabricated it. The court admitted the 

report as evidence of defendant's ability to manufacture 

evidence and to fabricate. We find no error in the admission 

of a psychological report that indicates the degree of skill 

with which defendant could fabricate when it suited his 

purpose. 

In significant part, the jury was required to resolve a 

basic contradiction between the testimony of the defendant 

and that of the victim. The traits of honesty and 

peacefulness were the bulwark of the defense. The State's 

cross-examination of the defendant was no broader than was 

required to meet the bold assertions and admissions during 

the direct examination of the defendant. 

We hold that the questioning by the State was proper 

impeachment of the defendant. 

v 

Was the testimony of the State's rebuttal witness, Dr. 

William Stratford, properly admitted? 

Dr. Stratford, a medical doctor and psychiatrist, was 

called as a rebuttal witness by the State. He was offered as 
an expert witness in forensic and child psychiatry. As 

foundation for his expert testimony, Dr. Stratford testified 

that he was a psychiatrist for Montana State Prison for six 

years; that forensic psychiatry constituted approximately 

one-third to one-half of his practice, and that he had 

testified as an expert in forensic psychiatry in hundreds of 

criminal cases. Dr. Strat ford also testified that child 

psychiatry was his subspecialty, that he had rendered in 

excess of 2,500 court evaluations concerning criminal and 

civil matters, including child custody, and that he ha.d been 

accepted as an expert in child and adult psychiatry in 

hundreds of court cases. The court accepted Dr. Stratford as 

an expert witness in all fields of psychiatry, including 

adult and child psychiatry. 

The trial court had originally ordered Dr. Stratford to 

determine whether the defendant was competent to stand trial. 

Dr. Stratford had visited the defendant four times in the 

county jail prior to trial. He testified that it was his 

expert opinion and diagnosis that the defendant was 

malingering, making a conscious attempt to appear mentally 

ill, and that defendant suffered from antisocial personality 

disorder. 

As an expert in child psychiatry, he testified that it 

is not unusual for a child initially to deny the number 

times she has been sexually assaulted. Regarding this 

avoidance or denial tactic, the State posed the following 

hypothetical question: 

"You can assume the following facts: You can 

assume that a girl 12 years old gives a statement 

in which she relates that her step father raped 

her, sexually assaulted. her, over a period of about 

13 weeks, and on the initial occasions that she 

talked to Law Enforcement, she states that it 

occurred on about eight occasions. As time goes 

on, she reveals that it occurred on about forty 

occasions, or as many as 40, not less than 25, not 
more than 40. She states that on occasion when 

questioned by her peers that she gave the answer 

her mother told her to say this, it really didn't 

happen. NOW, what can you tell me as far as that 

child is concerned - whether or not those kinds of 

responses are tactics of avoiding - to avoid 

talking about the incident?" 

Dr. Stratford explained that sexually abused children are 

usually female and are often dealing with fear because they 

have been overtly threatened. Denial occurs because 

"oftentimes children feel filthy, dirty, ashamed, they feel 

often guilty, responsible - they're basically afraid of 

upsetting the family constellation and they're afraid of what 

their parents - mother or step father - may do to them." 

Defendant contends that Dr. Stratford's testimony was 

improper rebuttal evidence and that his conclusion and 

diagnosis were based on privileged communications. 

The State contends that only defendant's statements are 

protected communications and that Dr. Stratford properly 

testified as to defendant's condition. His testimony was 

relevant and admissible because it tended to refute testimony 

that the defendant was nonthreatening and to explain 

testimony that T. denied the rape at school. 

"Rebuttal testimony is that which tends to disprove or 

contradict evidence presented by the adverse party." State 

v. Williams (1979), 185 Mont. 140, 153, 604 P.2d 1224, 1231. 

The facts of this case do not support defendant's contention 

that Dr. Stratford presented new evidence rather than 

rebuttal testimony. Dr. Stratford's diagnosis coincided with 

that of defense witness, Dr. Moss, who diagnosed the 

defendant as a sociopath. However, Dr. Stratford's 

conclusion that the defendant was malingering and consciously 

attempting to appear mentally ill refuted defendant's express 

denial that he was "putting on an act . . . [to] gain favor 

in court. " 
Another defense witness testified that when T. was asked 

at school whether Randy really raped her, she said "No, my 

mom is just making me say that." Dr. Stratford's explanation 

of children's denial or avoidance tactic directly contradicts 

the direct testimony of this defense witness. It indicates 

that T.'s denial reaction was typical of children who are 

sexual assault victims. 

Defendant asserts that Dr. Stratford's diagnosis was 

based on confidential communication with him and was 

therefore inadmissible. We disagree. 

Section 46-14-401, MCA provides in pertinent part: 

"Admissibilit of statements made during 

examination oz treytment. A statement made for the 

purposes ofpsychiatric examination . . . is not 

admissible in evidence against him in any criminal 

proceeding, . . . on any issue other than that of 

his mental condition. It is admissible on the 

issue of his mental condition, whether or not it 

would otherwise be considered a privileged 

communication., unless it constitutes an admission 

of guilt of the crime charged . . ." 

Defendant contends that this statute precludes Dr. 

Stratford's testimony regarding his mental condition becau 

(1) Dr. Stratford's knowledge of defendant's condition was 

acquired during the court-ordered examination, and (2) Dr. 

Stratford's diagnosis was based on privileged communications. 

Section 46-14-401, MCA is based on Model Penal Code, 

section 4.09. 

"This section embodies the view tha.t the important 

expert knowledge of the mental condition of a 

defendant acquired by examination or treatment on 

order of the court should be fully available in 

evidence in any proceeding where his mental 

condition may properly be in issue; but . . . the 

defendant's statements made for this purpose may 

not be put in evidence on any other issue." 

Commission Comments, section 46-14-401, MCA. 

It does not restrict the manner in which the issue of 

defend.antls mental condition may arise. In fact, the 

Official Comments to the Model Penal Code state that section 
4.09 "clearly makes statements made for purposes of either 

examination or treatment admissible on the issue of mental 

condition wherever and however that issue may arise." 

While it is true that the defendant did not notice a 

defense of mental disease or defect, he placed his mental 

condition in issue by calling Dr. Scott Moss, a clinical 

psychologist, as a defense witness. Counsel for the 

defendant asked Dr. Moss to relate to the jury the kinds of 

treatment programs defendant had participated in at the 

Federal Prison in Lompoc, California. Defense counsel also 

asked Dr. Moss how reliable he believed the Veterans 

Administration Hospital's diagnosis of paranoia schizophrenia 

was and whether that diagnosis affected the therapy he had 

given the defendant. Dr. Moss' direct testimony as an expert 

witness for the defense clearly placed the defendant's mental 

condition in issue. 

Section 46-14-401, MCA protects statements made as 

privileged communications, such as an accused's confession to 

a psychiatrist. No such statements were involved in Dr. 

Stratford's testimony about the defendant's mental condition. 

That section does not preclude psychological testimony by a 

court-appointed psychiatrist, where the issue of defendant's 

mental condition is raised by the defense during trial. 

Where a defendant places his mental condition in issue, 

the State must be afforded the opportunity to present 

rebuttal evidence. A court-appointed psychiatrist may 

testify as a rebuttal witness if his diagnosis of a 

defendant's condition differs from that of an expert witness 

for the defense. Such a rule makes use of information 

gathered by a neutral factfinder. See In re Miller (1977) , 

175 Mont. 318, 573 P.2d 1155; In re Sonsteng (1977), 175 

Mont. 307, 573 P.2d 1149. It does not negate the statutory 
prohibition against revealing statements made during a 

court-ordered examination. 

We hold that the testimony of the State's expert, 

rebuttal witness was properly admitted. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice 

Justices 
I respectfully dissent. 

The trial court erred in permitting defendant's Vietnam 

service record to be introduced for the purpose of rebutting 

the testimony of the witness Irvin Simpson. 

The majority opinion recites at length the testimony of 

this witness that the defendant was a top ranch hand; that he 

was good with animals; that the defendant liked to have his 

family and children with him while he worked; that defendant 

was a faithful worker; that the defendant suffered personal 

injury and discomfort without complaint. The witness a.lso 

testified that the defendant had never lied to him, that he 

had not seen him physically abuse anyone and that defendant 

had not raised his voice or screamed at the kids or cattle. 

Of course, all of this testimony was objectionable. The 

testimony did not prove character. 

The rule is well settled that witnesses called by 

defendant may not testify about defendant's specific acts or 

courses of conduct. Michelson v. United States (1948), 335 

U.S. 469, 69 S.Ct. 213, 93 L.Ed 168. A character witness's 

knowledge of particular acts is not admissible to prove the 

character of the accused since the word "character" means 

reputation as distinguished from disposition. Stewart v. 

U.S. (1939), 104 F.2d 234, 70 App.D.C. 101. Evidence that 

the defendant was charitable is held not to be admissible to 

prove good character. Steinberg vs. U.S., 162 F.2d 120, 

certiorari denied 68 S.Ct. 108, 332 U.S. 808, 92 L.Ed. 386. 

Testimony as to defendant's conduct as an employee likewise 

has been held inadmissible as character evidence. U.S. v. 

White (1963), 225 F.Supp. 514, cause remanded 349 F.2d 965. 

Here the prosecution sought to impeach the testimony of 

witness Simpson with specific acts of conduct committed while 

the defendant was in service in Vietnam. The admissibility 
Hon. Frank B. Morrison 

Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

s 

CORRECTION. In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

Date: 

Re: July 10, 1984 

State v. Clark, No. 83-44, May 8, 1984, dissent 

Page 28, line 19 --- State v. Mormon should read State v. Moorman. 

(Also cited in line 20, same page). 

WEST PUBLISHING COMPANY 

Box 3526 

St. Paul, MN 55165 
of this type of evidence is governed by Rule 405(a) 

M.R.Evid., which states: 

"(a) Reputation or opinion. In all cases in which 

evidence of character or a trait of character of a 

person is admissible, proof may be made by 

testimony as to reputation or by testimony in the 

form of an opinion. On cross-examination, inquiry 

is allowable into relevant specific instances of 

conduct. " 

The witness Simpson could have properly expressed an 

opinion with respect to defendant's reputation for either 

honesty or peacefulness. On cross-examination the State then 

could have inquired about specific acts which were relevant 

to the reputation testimony. 

Rule 405 (a) is not clear whether the witness can give 

testimony beyond the scope of his own knowledge. 

Historically the rule has been that character witnesses could 

give testimony respecting the defendant's reputa.tion in the 

"J ' 0 f:, , , ," community. State v.'~ormbn (1958), 133 Mont. 148, 153, 321 

$+.r/ 1 JLk 

P.2d 236. In ~ormon this Court did allow cross-examination 

on specific acts but indicated that those acts must have been 

committed in the community where the witness formed his 

opinion about the defendant's reputation. The Court said: 

"While the general rule may be as defendant states, 

that is, cross-examination of character witnesses 

must be based on acts within defendants community. 

In this regard see citation of authority in 

Annotation, 71 A.L.R. 1504, 1517, 1535. It was not 

contended by defendant or the State that the acts 

upon which the character witnesses were 

cross-examined occurred anywhere but in Laurel, the 

community where defendant had lived most of his 

life, the community in which the character 

witnesses knew him, the community in which they had 

heard the rumors and reports propounded to them. 

From the foregoing discussion it is apparent to 

this Court that defendant's second alleged errors 

without merit. " 

In this case we are presented with testimony of a 

witness who testified about defendant's work habits and the 

way he treated animals and children. No character evidence 

was given. If the witness had expressed an opinion about the 
defendant's reputation in the community cross-examination 

would properly be permitted on specific acts of the defendant 

which occurred in the community and which would tend to 

impeach the direct testimony. The rule would not allow for 

testimony about the defendant's conduct in Vietnam. However, 

in this case no character evidence was even offered and no 

specific acts refuting character testimony should have been 

allowed. 

The State failed to object to the inadmissible testimony 

offered by the defendant's witness Simpson. Since the 

testimony was in the record it could be refuted by the State 

hut the impeachment evidence would have to be limited to that 

evidence directly contradicting the witness. In other words, 

evidence could have been introduced to show that defendant 

did mistreat children or animals in the presence of the 

witness. 

Perhaps this seems technical but the rules of evidence 

have a sound basis. Specific acts of misconduct on the part 

of the defendant have a tendency to prejudice the defendant's 

right to a fair trial and must be carefully controlled by the 

trial court. The testimony here admitted against the 

defendant far exceeded the bounds of any legitimate 

impeachment inquiry. 

I would reverse and remand for a new trial. 
Mr. Justice Daniel J. Shea, dissenting: 

Generally, 7: agree with Justice Morrison in his 

conclusion that the offered evidence was not properly 

character evidence, and therefore, even if defendant opened 

the door, the offered evidence was inadmissible. 

Beyond this, however, 1 believe that even if the 

evidence were admissible under the theory taken by the 

majority, the evidence was so highly prejudicial, so highly 

inflammable, that the trial court should not have admitted it 

in any event. It is but another example of the State seeking 

to achieve a conviction by any means possible, and in doing 

so stretching the law of evidence beyond the breaking point. 

L Justi 

Mr. Justice John C. Sheehy: 

I concur in the foregoing dissents of Mr. Justice 

Morrison and Mr. Justice Shea. 

Justice