NO. 93-027

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

THE STATE OF MONTANA,

Plaintiff and Respondent,

-vs.-

LESLIE ALLEN LUNSTAD,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Public Defender, Helena,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Barbara c.

Harris,- Assistant, Helena, Montana: Gary Ryder,

Deputy Richard County Attorney, Sidney, Montana

Submitted on Briefs:

Decided:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Seventh Judicial

District Court convicting Defendant of felony sexual assault. We

reverse and remand for a new trial.

One issue is dispositive of this appeal: Did the District

Court err in admitting prior consistent statements of the alleged

victim?

On November 4, 1991, C.H., a minor, the alleged victim in this

case, told her father that the Defendant, Leslie Lunstad (Mr.

Lunstad), had touched her in a private place. Based on this

allegation, Mr. Lunstad was charged by Information with felony

sexual assault.

At the jury trial, C.H. testified that Mr. Lunstad asked

permission to touch her. C.H. testified that she said "nol', but

that Mr. Lunstad touched her anyway. C.H. stated that Mr. Lunstad

told her not to report the incident to her parents and gave her two

pennies. This incident allegedly occurred on November 4, 1991.

During the State's case-in-chief, the State attempted to

introduce C.H.'s prior consistent statements regarding her version

of the events. The trial judge refused this evidence as

inadmissible hearsay, stating that Mr. Lunstad had not implied that

C.H. had subsequently fabricated her testimony, was improperly

influenced, or had an improper motive.

During the Defendant's case-in-chief, Mr. Lunstad testified

that sometime during the week of October 27 to November 3, 1991, he

and C.H. were playing Nintendo in the family home. C.H. was seated

2
on his lap and Mr. Lunstad had his arms on top of her legs,

operating the Nintendo controller. Mr. Lunstad testified that he

dropped the controller and, when he retrieved the device, he

accidently touched C.H. in her crotch. A week later, on November

4, 1991, Mr. Lunstad testified that he was again playing Nintendo

with C.H., at which time C.H. told Mr. Lunstad she would report the

prior touch to her father if he would not give her a piggy back

ride.

Both Mr. Lunstad and C.H. testified that they were both fully

clothed during this incident and that only one touch occurred. In

dispute was whether Mr. Lunstad purposely or accidently touched

C.H.

On cross-examination of Mr. Lunstad, the State asked him:

Q: So are you saying [that C.H.], when she came before this

jury, she lied?

A: Yes.

Q : And you're saying that she came forward and lied about

the fact that you offered her money not to tell her dad?

A: Yes.

Q: And you're saying that she lied about the fact that you

asked her if you could touch her private parts?

A: Yes.

After this testimony, the State requested permission to present

rebuttal testimony in the form of the prior consistent statements

made by C.H. This request was made pursuant to Rule 801(d)(l)(B),

M.R.Evid., on the basis that Mr. Lunstad had called C.H.'s

credibility into question. The State wished to introduce

statements C.H. made to a police officer, including a tape recorded

3
statement, and statements C.H. made to her counselor. The trial

court allowed these statements as prior consistent statements to

rebut charges of fabrication or motive.

On rebuttal, the police officer who took C.H.'s statement

played a recording of that statement. This statement related

C.H.'s version of the incident, and was essentially the same as her

in-court testimony. The counselor did not testify as to C.H.'s

truthfulness, but testified as follows:

Q: Okay. The question was, you did have an opportunity to

sit through her [C.H.] testimony yesterday?

A: Yes I I did.

Q: And on how many occasions has she related to you her

version of what's taken place?

A: Approximately four times.

Q: Was there any significant factual differences between her

testimony yesterday and the statements that she has given

you?

A: NO.

This evidence was presented on rebuttal to a jury on July 29

and 30, 1992. The jury found Mr. Lunstad guilty of felony sexual

assault. Mr. Lunstad was sentenced to ten years in prison on the

assault charge and ten years in prison for being a persistent

felony offender, all sentences to run consecutively. In addition,

the trial judge designated Mr. Lunstad a dangerous offender and

required him to complete Phase I and II of the sexual offender

treatment program. From that verdict and sentence, Mr. Lunstad

appeals.

Our standard of review relating to discretionary trial court

rulings, such as the decision to allow certain evidence to be heard

4
by the jury, is whether the trial judge abused his discretion in

allowing the evidence. Steer, Inc. v. Dep't. of Revenue (1990),

245 Mont. 470, 474-75, 803 P.2d 601, 604.

One issue is dispositive in this case: did the District Court

err in admitting C.H.' s prior consistent statements? '

Rule 801(d)(l)(B), M.R.Evid., states:

A statement is not hearsay if . . . [t]he declarant

testifies at the trial or hearing and is subject to

cross-examination concerning the statement, and the

statement is (B) consistent with the declarant's

testimony and is offered to rebut an express or implied

charge against the declarant of subsequent fabrication,

improper influence, or motive. . . .

This rule only applies when the declarant's in-court testimony has

been impeached by another party's allegations of subsequent

fabrication, improper influence, or motive.

The sole basis for allowing C.H. 's prior consistent statements

was the theory that, by agreeing with the State that C.H. was

lying, Mr. Lunstad had charged her with fabrication. The District

Court held that, when Mr. Lunstad agreed that C.H. was lying, he

opened the door for C.H.'s prior consistent statements to be

admitted. We disagree, and hold that the State cannot use this

line of questioning to admit prior consistent statements of a

witness.

In State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351, the

State asked the defendant during cross-examination: "In essence

you are saying that [the informant] was lying?" The defendant

answered, "That is correct." Webb - I 828 P.2d at 1356. The State

contended that the defendant had attacked the informant's character

and was allowed to present character evidence under Rule 608,

5
M.R.Evid.

On appeal, this Court approved other jurisdictions' holdings

that "neither contradictory evidence nor extensive crossexamination constitutes an attack upon a witness['] character for

truth and veracity." -,Webb 828 P.2d at 1356. In Webb the State -,

opened the door by directly asking the defendant if he believed the

informant was lying. In commenting on the State's position, this

Court stated that the State cannot itself open the door for opinion

testimony regarding the truthfulness of its own witness, Webb, 828

P.2d at 1356. Although Webb involved Rule 608, as opposed to Rule

801, the analysis used in Webb applies in this case.

Here, the trial judge denied the State's request to present

prior consistent statements to the jury during the State's case-inchief. Thereafter, the State questioned Mr. Lunstad and asked him

directly if he believed C.H. was lying. The State cannot put a

defendant in this tenuous position and then introduce prior

consistent statements to "rebut" the only answer that the State

knows the defendant can give consistent with his defense. Here,

the State itself opened the door by directly asking Mr. Lunstad if

C.H. was lying, and then attempted to bolster C.H.'s credibility by

the admission of the very prior consistent statements that the

district judge had ruled inadmissible hearsay in the State's casein-chief. The State cannot use this type of cross-examination to

get evidence admitted which it could not get admitted prior to its

cross-examination. We hold that it was an abuse of discretion and

reversible error to allow the rebuttal testimony, in the form of

prior consistent statements, to be presented on these facts.

6
For the guidance of the District Court and counsel on retrial

of this case, we also hold that the statements of C.H. were not

admissible under Rule 801(d)(l)(B), M.R.Evid., because such

statements were not made prior to the time C.H.'s alleged motive to

fabricate arose. In this case, Mr. Lunstad claimed that C.H.

threatened to tell her father about the touch if Mr. Lunstad would

not give her a piggy back ride. The only possible motive to

fabricate suggested by Mr. Lunstad was the fact that C.H. was

angered at him for refusing her the piggy back ride. Therefore,

any "motive" arose on November 4, 1991, the day C.H. allegedly made

that statement to Mr. Lunstad. Any statements C.H. made after that

date, including statements to her father (November 4, 1991), the

police officer (November 5 and 6, 1991), and her counselor

(January, 1992), could not be prior consistent statements, because

they were made subseauent to the time C.H.'s alleged motive to

fabricate arose. Therefore, C.H.'s statements were not admissible

as prior consistent statements as contemplated by Rule

801(d)(l)(B), M.R.Evid., and the hearsay exclusion does not apply

in this case.

In State v. Scheffelman (1992), 250 Mont. 334, 820 P.2d 1293,

the prosecutor anticipated that the defendant would allege

fabrication and motive, and addressed the same in her opening

statement. However, in his opening statement, counsel for the

defendant also stated the victim had lied. Scheffelman, 820 P.2d

at 1296. During cross-examination, defense counsel challenged the

victim's testimony. He also alluded to the possibility that the

victim had a motive to fabricate and implied she was subject to
improper influence by the prosecutor. Scheffelman, 820 P.2d at

1296. The State was allowed to present the victim's prior

consistent statements.

On appeal, this Court held that a prior consistent statement

was allowable if it was made before any motive to fabricate had

arisen. However, if a defendant does not assert that the victim is

subsequently fabricating her story, but claims, as in this case,

she was lying all along, prior consistent statements are not

admissible. Scheffelman, 820 P.2d at 1296. In Scheffelman, the

Court held that, because the defendant alleged the victim was

improperly influenced, no error was committed in allowing the prior

consistent statements into evidence under Rule 801. Scheffelman,

820 P.2d at 1296.

In this case, however, defense counsel did not state in her

opening statement that C.H. was a liar. Counsel did not challenge

C.H.'s testimony on cross-examination, did not allude that C.H. was

subject to improper influence by the prosecutor, and did not allege

that she changed her version of the incident. Therefore, on its

facts, Scheffelman is distinguishable from the case at bar.

Similarly, Mr. Lunstad did not conduct a general attack on the

credibility of C.H. of the sort that justified the admission of

prior consistent statements in State v. Medina (1990), 245 Mont.

25, 798 P.2d 1032.

Reversed and remanded for a new tri

8
We Concur:
August 10, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

William F. Hooks

Appellate Public Defender

Capitol Station

Helena, MT 59620

Leslie Allen Lunstad

700 Conley Lake Road

Deer Lodge, MT 59722

Hon. Joseph P. Mazurek, Attorney General

Barbara C. Harris, Assistant

215 N. Sanders, Justice Building

Helena. MT 59620

Gary Ryder, Deputy

Richland County Attorney

Richland County Courthouse

Sidney, MT 59270

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY:Jt. cu

Deputy