NO. 93-618 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

STATE OF MONTANA, Plaintiff and Respondent,

v. STEVEN HENRICH, Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Thomas Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Anne H. Watson,Watson and Watson, Bozeman, Montana For Respondent: Hon. Joseph P. Mazurek,Attorney General, George Schunk,Assistant Attorney General, Helena,Montana Mike Salvagni,Gallatin County Attorney, Gary Balaz, Deputy CountyAttorney, Bozeman, Montana

Filed: Submitted on Briefs: October 28, 1994 Decided: December 8, 1994Justice Terry N. Trieweiler delivered the opinion of the Court. On April 23, 1993, defendant Steven Henrich was charged by informationfiled in the District Court for the Eighteenth Judicial District in Gallatin County with endangering the welfare of children, a misdemeanor, inviolation of 5 45-5-622(2)(a)(i) 

### , MCA; sexual intercourse without consent, a felony, in violation of 5 45-5-503, MCA; incest, a felony,inviolationof 5 45-5-507, MCA; two counts of sexual assault,a felony,inviolation of § 45-5-502, MCA; and two counts of assault, a misdemeanor, in violation of 5 45-5-201(1) (a),MCA. On September 24, 1993, the State filed an amended information amending one count of misdemeanor assault to felony assault in violation of 5 45-5-201(3),MCA, and adding additional facts in support of other charges. Following a jury trial which was conducted from September 27-29, 1993,Henrich was convicted 

### of six of the seven offenses charged, sentenced to 22 years in the Montana State Prison, and designated a dangerous offender. Henrich appeals. We affirm inpart and reverse inpart. The issues on appeal are rephrased as follows: 1. Did the District Court abuse its discretion when it refused to grant Henrich'smotion for a mistrial and motion for a

new trial based on a newspaper article about additional charges against Henrichpublished in the Bozeman Chronicle the day before the case was submitted to the jury? 2. Did the District Court abuse its discretion and did prejudice resultwhen it allowed the jury to listen to a portionof

one of the victim'srecorded testimony during deliberations?3. Was there sufficient evidence for the jury to convict Henrich? 4. Did the District Court abuse its discretion when it allowed a school counselor to testify regarding a complaint made by

one of the victims? 5. Did the District Court errwhen it concluded that Henrich is a dangerous offender? 6. Did the District Court err when it sentenced Henrich to the Montana State Prison? FACTUAL BACKGROUND Steven Henrich is married to Patricia Henrich. They are the parents of M.H.,born onJanuary 22, 1976,andA.H.,born onMay 9, 1977. Both daughters were removed from their parents' home after A.H. complained in February 1992 that Henrich had physically and sexually abused her sister over a period of fiveyears. At trial, the girls related the following history of abuse prior to their removal. M.H. testified that in 1987,while the family lived in West Yellowstone,Henrichwould occasionally takeher to thewoods under the pretext that they were going to shoot weapons. Instead of shooting,M.H. said that Henrich fondled her and had her perform sexual acts for his physical gratification. This conduct was the basis for one count of felony sexual assault. After they lived inWest Yellowstone,but before they moved to Belgrade, Henrich worked as a chef at Big Sky and lived in the dormitories with M.H. M.H. testified that while living in thedormitories, Henrich had sexual intercourse with her. She also testifiedabout severaldifferent time periods duringwhichHenrich had intercourse with her at other locations from 1988 to 1992. M.H. testified that the sexual acts were a routine that she complied with because she was afraid of Henrich. These acts were the grounds for the charge of sexual intercoursewithout consent. M.H. testified that in the fall of 1989,when she was in the eighth grade, she attended a Halloween dance against Henrich's wishes. Upon returning from the dance, M.H. stated that Henrich backhanded her and spankedher with a cribbageboard. This conduct

was the basis for one count of misdemeanor assault. M.H. testified that in February 1992, Henrich had her take speed or methamphetamine prescribed for him. This was the basis for the charge that he endangered the welfare of a child. A.H. alleged that she was also a victim of Henrich'sabuse. She testified that in 1991or 1992Henrich,ondifferent occasions, backhanded her in the face, kicked her in the stomach, and threw the telephone and electrical tape at her. This conduct was the basis for 

### a second count of misdemeanor assault. Her testimony that he rubbed her crotch and vaginawas the basis for the second count of sexual assault. These allegations of physical and sexual abuse were first revealed when A.H. reported the occurrences to Belgrade school counselors in February of 1992. FollowingA.H.'sreport, she and M.H.were removed from their parents' home.This case was tried from September 27-29, 1993. On September 28, 1993, before the jury began deliberations, the BozemanChronicle published two storiesaboutHenrich. One article merely summarized the trial. A second article was shaded and entitled "Man faces pimping charges," and involved additional charges filed against Henrich on September 17, 1993. 

### Thenextmorning, JudgeThomasA. Olsondiscussed the articles with both attorneys. 

### enrich's counsel immediately moved 

### for a mistrial because of the publicity. The court instead questioned each juror individually in chambers to determine if any had read the article. Judge Olsonplaced paper over the title and sat 10 to 12 feet from the jurors and asked each juror the following series of questions: 1. Did that juror subscribe to the Bozeman Chronicle? 2. Did that juror see the Chronicle the preceding evening? 3. Did that juror see the shaded article or the article next to it about the trial? 4. 

### Did anyone tell that juror about the shaded article or call their attention to it? 5. Did that juror see the television story about the trial

on Channel 7 the previous night? None of the jurors stated that they read or heard about details of the article; nor did any state that theyhad observed or heard about the details 

### of the television coverage. As a result, the court allowed the trial to continue. Henrichfscounsel again objected.As the jury was deliberating, they sent a note requesting to hear M.H.'s testimony, beginning with a specific question the prosecutor asked M.H. The court sent back the note and requested the jury to indicate the extent of the requested testimony. ~fter the jury responded, the court discussed the request with counsel and replayed that portion of the testimony for the jury. The jury continued deliberating and later returned a verdict that 

### enrich was guilty of six of the seven counts with which he was charged. The court had dismissed the charge of incest following Henrich's motion for a directed verdict. Finally, after a sentencing hearing during which the court heard testimony from a professional counselor, a psychologist, Henrich, his wife, and others, the court sentenced Henrich to 22 years in prison and designated him a dangerous offender. Henrich claims numerouserrors warrant reversal

### of his convictions. We affirm in part and reverse in part. ISSUE 1 Did the District Court abuse itsdiscretionwhen it refused to grant Henrich'smotion for a mistrial and motion for a new trial based on a newspaper article about additional charges against Henrich published in the Bozeman Chronicle the day before the case was submitted to the jury? Our standard of review from a district court'sdenial of a motion for mistrial is whether there is clear and convincing evidence that the trial court's ruling was erroneous. 

### State

### v.Greyfak

(1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. We review a 6court's decision to deny a motion for a new trial to determine whether there is a showing of manifest abuse of discretion. Geiger



### v. Sherrodd,

### Inc. (19931, 262 Mont. 505, 508, 866 P.2d 1106, 1108. Henrich argues that he was denied a fair trial in violation of the Sixth Amendment of the

### U. S.Constitution andArticle 11,Section 4, of the Montana Constitution, because of the second newspaper article. The articlewas entitled "ManFaces PimpingCharges,

### " and discussed charges filed against Henrich on September 17, 1993. Henrich would have us conclude that the article was prejudicial per se and require a new trial. This case does not involve a situation of continuous and massive pretrial publicity giving rise to due process implications,as in Estesv. Texas (1965) 

### , 381U.S. 532, 85 S. Ct, 1628, 14

### L.Ed. 2d 543. This case ismore analogous to our previous decisions regarding prejudicial news releases during a trial. SeeStatev.Kirkland (l979),184Mont. 229, 602 P.2d 586;State v. Weaver (l98l),195 Mont. 481, 637 P.2d 23. InKirkland, television broadcasts during the trial labeled the defendant as a hired killer. The district court denied the defendant'smotion foramistrial and admonished the jury todecide the casebased on the evidence presented and not to listen to radio

or television broadcasts 

### or read newspaper reports. We discussed what action is required of a district court when prejudicial news releases appear during trial and noted that we must determine whether the news releases tainted any of 

### the jurors. Kirkland, 602P.2d at 592. We refused to adopt a rule that would require the court to voir dire each juror individually. We held that the determination of whether a defendant'sright to a fair trial had been prejudiced by publicity is within a district court'ssounddiscretion. Kirkland, 602 P. 2d at 594 (citing Marshallv. Unitedstates (1959),360U.S. 310,79 S. Ct. 1171,3 L. Ed. 2d 1250)

### . We reaffirmed this notion in Weaver. In Weaver, the defendant claimed he was denied a fair trialbecause of prejudicial newspaper articles. The trial court admonished the jury to rely only on the evidence presented in court and not to read the newspaper. We noted that Montana doesnot require a district court to individually question jurors regardingpublicity,but rather it is within the trial court's discretion to determine whether newspaper articles are prejudicial. Weaver, 637 P.2d at 28. We required a defendant to show lack of due process or actual juror partiality. Weaver, 637 P.2d at 28-29. We concluded that the court'sadmonitions were sufficient to cureanypossibleprejudice. Weaver, 637 P.2d at 29. In this case, Judge Olson admonished the jury not to let any other person talk to them about the trial, and not to read about the case in the newspapers, or listen to radio or television broadcasts about the trial. After the story appeared in the newspaper, Judge Olson individually questioned the jurors to determine the extent to which they were exposed to, or influenced by, the article. They all denied reading the article orknowingofits contents. Nothing in their responses indicates prejudice from the article. To hold otherwise would require the conclusion that the jurors were not truthful when they responded to the court's questions. We have no basis for such a conclusion. Nor has Henrich offered any. We conclude that the District Court did not abuse its discretion by the manner in which it determined whether unfavorable news stories were prejudicial to Henrich and did not err when it denied Henrich'smotions for a mistrial and for a new trial. ISSUE 2 Did the District Court abuse its discretion and did prejudice result when it allowed the jury to listen to a portion of one of the victim'srecorded testimony during deliberations? Our standard of reviewof adistrict court'sdecision to allow or disallow a jury'srequest to replay trial testimony is whether the district court abused its discretion. State v.

### Evans (1993),261 Mont. 508, 511, 862 P.2d 417, 418. Henrich claims that the District Court committed reversible error by allowing a portion of M.H.'s testimony to be replayed for the jury during its deliberations. Montana statutorily altered the common law rule that did not allow the trial court to reread a transcript of a witness's testimony or to replay recorded testimony during deliberations. Section 46-16-503(2),MCA, provides: After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on anypoint of law arising in the cause, they shall notify the officer appointed to keep them together,who shall then notify the court. The information requested may be given, inthediscretionof the court, after consultation with the parties. The common law rule was designed to prevent undue emphasis being placed onmaterials given to the jury as opposed to other evidence in the case. We have recognized that this rule still applies in most cases. Evans, 862 P.2d at 419. Recognizing 5 46-16-503(2), MCA, and the difficulty of allowing testimony to be replayed, this Court has imposed a stringent requirement upon district courts faced with this issue. We set forth a specific instruction for these circumstances inState v. Harris (1991),247 Mont. 405, 808 P.2d 453, and restated it in Evans, 862 P.2dat 419-20. When dealingwith requests from the jury about witness testimony, the courts should answer the requestwith this instruction: Itwould be error forme to furnishyouwith a transcript of any particular witness for the reason that in rendering your verdict, you should not give any undue emphasis to the testimony of any one witness to the exclusion of all others. Instead, you should consider all of the evidence as awhole in renderingyourverdict. However, if youhave some particular reason orpoint that youare trying to resolve that relates to the evidence of this witness, you may submit that question to me in written form, and I will give it consideration. Harris, 808 P.2dat 460. In Harris, we acknowledged that testimony should be reread to the jury only in limited circumstances contemplated 

### by 5 46-16-503 (21, MCA. An example would be a witness's testimonyregarding basic factual matters like "thewidth of a street, the height of an object,distance, time or some other limited request, but not the entire testimony of the witness." Harris, 808 P.2d at 460. In this case,Judge Olson ensured thatM.H.'sentire testimony

was not replayed. He also consulted the jury regarding the extent of the testimony that it was requesting. In spite of these precautions,we conclude that the District Court erred by failing to give the instruction set forth in Harris. However,before aprocedural error is abasis for reversal,it must be shown to have been prejudicial. Section 46-20-701,MCA. After listening to that portion of M.H.'s testimony which was replayed for the jury,we conclude that Henrichwas not prejudiced by the court's failure to give the Harris instruction. We have previously concluded that it is prejudicial to replay testimony if it would emphasize the testimony of one witness where several otherwitnesses have testifiedabout the samepoint. Evans, 862 P.2d at 420. InEvans, the defendant was charged with obstructing justice. A critical elementwaswhether the defendantknew theperson hiding in his home was an offender. Several witnesses testified to this crucial element, including a detective. The jury requested to rehearpart of the detective'stestimony,and the court refused the request. We affirmed the district court because replaying the detective's testimony on a critical point of proof about whichseveral witnesses testified would emphasize the detective's testimony over several others. Evans, 862 P.2d at 420. The same concern was not present in this case. There were not numerous witnesses who testified to the acts with which the replayed portion of M.U.'s testimony was concerned. The only witnesses were M.H. and Henrich. The fact that her testimony had to be balanced against Henrich's denial was obvious, and thus, an instruction to that effect was not as critical as it would be under other circumstances which we have considered. We conclude that although the District Court erred by replaying aportion of M.H.'s testimonywithout first giving the proper instruction to the jury, the record does not demonstrate that the error was prejudicial. ISSUE 3 Was there sufficient evidence for the jury to convict Henrich? The standard of review is whether the evidence viewed in a light most favorable to the State would permit any rational trier of fact to conclude that the elements of the crimes charged were provenbeyond a reasonabledoubt. Statev.Cates (1990) 

### , 241Mont

### . 282, 285, 787 P.2d 319, 321. Henrich argues that the only evidence supportinghis convictionwas testimonybyA.H.andM.U. He claims that their testimony is not credible because they are minors who made inconsistent statements, had a history of making false accusations,and had a motive to fabricate their testimony. Substantial evidence is evidence that a reasonablemind might accept as sufficient to support a conclusion. Statev.

### Wilson (1981),193 Mont. 318, 327, 631 P.2d 1273, 1278. In sex offense cases, including those that involve small children,thevictims'testimony need not be corroborated. Statev.Gilpin (1988),232Mont. 56, 70, 756 P.2d 445, 453. The weight and credibility of witnesses is exclusively within the province of the jury. Statev. Urness (1989) 

### , 239 Mont. 58, 60, 778 P.2d 419, 421. Henrich would have us conclude that A.H.'s and M.H.'s testimony was not credible. However,the previous authorities are based on the notion that jurorsare in the best position to drawor reject that conclusion. In this case, they rejected it. Furthermore,except for the incest charge which was dismissed by directed verdict, and Count 1,Henrich did not allege at the time of trial that the testimonywas insufficient to establish the elements of the specific offenses charged. Therefore, that claim was waived for purposes of appeal, except for Count 1, which related to endangerment of a child in violation of 5 45-5- 622(2)(a)(i)

### , MCA. Henrich argues that the evidence is insufficient to establish that he was guilty of endangering the welfare of childrenpursuant to 

### 5 45-5-622 (2)(a)(i) ,MCA,by supplyingM.H.with an intoxicating substance. 

### An intoxicating substance is a controlled substance as defined inTitle 50,Chapter 32,MCA. Methamphetamine,the alleged drug given to M.H., is a controlled substance as defined in 5 50-32-224(3)(c),MCA. The jury found Henrich guilty 

### of thisoffense based solely on M.H.'s testimony that Henrich gave her speed or methamphetamine that was prescribed for him. We have recognized that it is not necessary to have a suspected intoxicating substance tested by the state crime lab to substantiate a conviction for a drug related offense. Statev.Salois

(1988), 235 Mont. 276, 279, 766 P.2d 1306, 1309. Like other elements of a criminal offense, proof that a drug is an intoxicating substance may be established by circumstantial evidence. Slate

### v.Dunn (l97O), 155 Mont. 319, 472 P.2d 288. To justify a conviction based on circumstantial evidence that a substance is a dangerous drug or intoxicating substance, however, the facts and circumstancesmust be entirely consistent with guilt and inconsistent with any otherrational theory. Statev.Starr (1983), 204 Mont. 210, 215, 664 P.2d 893, 896 (citingStatev.Stoddard (l966), 147 Mont. 402, 412 P.2d 827). InDunn, the defendant gave two teenage girls pills alleged to be LSD. The girls both testified that they hallucinated from the drugs. In addition, a doctor expressed an opinion that the drugs

were LSD, or a combinationof LSD and an amphetamine, and a parent of one of the girls described her behavior as she hallucinated. Dunn, 472 P.2d at 296-97. However, the circumstantial evidence in this case was not sufficient to establishHenrichwas guilty of the charged offense. M.H.'sunqualified opinion is insufficient to establish that the alleged drug was methamphetamine. The State did not introduce abottle of the pills, any analysis of the pills, or any expert analysis of M.H.'sreaction to the pills. Her testimony that she shook,was wide awake, and that her hair tingled from ingestion of the substance was not supported by other testimony, as in Dunn. We conclude that substantial evidence did not support the jury's conclusion that Henrich gave M.H. methamphetamine. Therefore,his conviction for endangering the welfare of children is reversed. We conclude thatHenrich's other convictions were supportedby substantial evidence. ISSUE 4 Did the District Court abuse its discretion when it allowed a school counselor to testify regarding a complaint made by one of the victims? Henrichmoved foramistrial based on the admissionof hearsay evidence. We will affirma district court'sdenial of amotion for mistrial unless there is clear and convincing proof that the district court erred in its ruling. 

### Greytak, 865 P.2dat 1098. Neil Bricco, a Belgrade school counselor, testified about a meeting he had with A.H. on February 28, 1992. At this meeting, A.H. told Bricco about the sexual and physical abuse, including abuse of M.H. The court decided to allow Bricco to testify about what A.H. told him regarding her situation. However,Bricco began to testify that A.H. told him that Henrich sexually abused M.H. Henrich objected to this testimony and requested a mistrial. Thecourt ordered that the testimony of Bricco regarding the abuse of M.H. be stricken, admonished the jury to ignore it, and denied Henrich'smotion for a mistrial. The district court is in the best position to determine the jurors'reaction to inadmissible evidence and to decide whether a mistrial is necessary. Statev.

### Seaman (l989), 236 Mont. 466, 475-76, 771 P.2d 950, 956. Here, the court properly ordered the testimony stricken and admonished the jury. In addition, A.H. testified personally that she told Bricco about M.H.'s abuse. Henrich has failed to establish clear and convincing proof that the District Court erred when it denied his motion for a mistrial, or that Bricco's testimony was more harmful than A.H.'stestimony to the

same facts in person. Henrich challenges other aspects of Bricco'stestimony. The prosecutor asked Bricco " [hlow open are children who have been sexually abused to talking about that with a counselor." Henrich objected, stating that Bricco was not qualified to render an opinion on this issue. The court overruled the objection and Bricco responded that the abuse isusually kept within the family. Henrich now argues that Bricco lacked personal knowledge to answer this question,orwas not an expert qualified to render an opinion

on this issue, and Bricco'stestimony improperly bolstered A.H.'s testimony. We do not decide whether Bricco's testimony is relevant evidence,but 

### only addressthe issue raisedbyHenrich'sobjection,i.e.,whether Bricco was qualified orhad personal knowledge. Rule 602,M.R.Evid.,states: A witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal,knowledgemay, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Bricco testified that he was a school counselor for seven years. He did not specialize in counseling sexually abused children, but did encounter them while providing general counseling. He stated that he sawhundreds of children in the two years he counseled at Belgrade. Of these children,Bricco stated that about ten percent were sexually abused. He discussed sexual abuse with numerous children. How open children were about sexual abuse was, therefore, a matter of his personal counseling experience. We conclude that Bricco was merely stating a personal observation, and that the District Court did not err when it admitted his testimony. ISSUE 5 Did the District Court err when it concluded that Henrich is

a dangerous offender? A district court is required to articulate its reasons for its determination that an offender is a dangerous offender and must do

more than merely recite the statutory Language. 

### State v.

### Morrison

(1993), 257 Mont. 282, 287-88, 848 P.2d 514, 517-18. Henrich argues that the court erred when it determined that he was a dangerous offender forpurposes of parole eligibility. Althoughhe 17cites no case authority, and does not claim that the court failed to articulate its reasons,he asserts several challenges. Henrich'smain argument is that evidence did not support the court's dangerous offender determination. The court shall designate an offender as nondangerous for parole eligibility purposes if the court has determined, based on the presentence report, evidence at trial, and the sentencing hearing, that the offender "doesnot represent a substantial danger to other persons

or society." Section 46-18-404(1),MCA. If the court determines that the offender is dangerous, that determination shall be made part of the sentence imposed and shall be stated in the judgment. Section 46-18-404(3), MCA. The District Court considered the presentence investigation report, evidence at trial,and the sentencinghearing. Because of the nature and the duration of the abuse, the court found that Henrichwas a substantialdanger to his daughters. Posing a threat of harm to others is a sufficient basis for designation as a dangerous offender. Henrich also argues that we should reverse the District Court's dangerous offender designation because he was not given notice before trial in violation of his due process rights. We disposed of a similarargument inStatev.Krantz (1990) 

### , 241Mont

### . 501, 788 P.2d 298,cert.denied (l99O),498 U.S. 938,where we stated that notice of the sentencinghearing itself is sufficient notice of apotential dangerous offender designation because the sentencing court is required to consider the issue. Krantz, 788 P.2dat 305. Finally, Henrich asserts that we should reverse the court's dangerous offender finding because there is no proof beyond a reasonable doubt that Henrich is dangerous. Dangerousness is not

an element of the offenses charged and need not be proven beyond a reasonabledoubt. Rather,the Montana Legislature has decided that the dangerous offenderdetermination isa sentencingfactor. Krantz, 788 P.2d at 305. We conclude that the District Court articulated sufficient reasons when it determined Henrich was dangerous to other persons,and that his designation as a dangerous offenderdid not violate Henrich'sright to due process. ISSUE 6 Did the District Court err when it sentenced Henrich to the Montana State Prison? Henrich contendsthat his sentence to the Montana State Prison was contrary to ourdecision inStatev.hlay (1991),249Mont. 82,813 P.2d 979,cert.dismissed (1992),113 S. Ct. 444,121 L. Ed. 2d 310. In Imlay, the defendant's prison sentence for sexual assault was suspended on the condition that he complete 

### a sexual therapy program. The defendant attended sexual therapy programs but refused to admit his guilt,which was aprerequisite to completion of any treatment program. As a result,his suspended sentence was revoked and the defendant was sentenced to prison. In Imlay, we held that the defendant was punished for exercising his rightagainst self-incrimination,as protected by the Fifth Amendment, because he was sentenced to prison for refusing to confess to the crime. Imlay, 813 P.2dat 985. Henrich'smain challenge stems from a counselor'spresentence sexual evaluation that recommended incarceration because Henrich continued to deny his guilt and rehabilitation was unlikely. Henrich objected to the report, claiming it violated rights protected by the Fifth Amendment to the U.S. Constitution, as set forth inImlay. Imlay doesnot prevent aprofessional counselor from testifying at the sentencing phase that, in his or her opinion, a defendant ought tobe incarcerated. Rather,Imlay prevents a sentencing court from incarceratinga defendant forrefusing to confess to the crime in order to complete treatment that is a condition of a suspended sentence. At the sentencing hearing held October 28, 1993, the court indicated it considered Henrich's characteristics,the presentence investigations, criminal record, conduct, and psychological reports. The District Court decided that Henrich'sprospects of rehabilitation were slim, that the crimes continued over a significanttimeperiod,and that Henrichwas dangerous. The court considered other alternatives,but Henrich was sent to prison for punishment because ,of the severity of his crimes and the slim prospects for rehabilitation,not because he failed to admit hisguilt. Therefore,we conclude that the District Court did not err when it sentenced Henrich to the Montana State Prison. We affirm in part and reverse in part the judgment of the District Court.

We concur:JusticeKarla M. Gray,dissenting.

I concur in the Court's opinion on all issues except issue 2, whether the District Court abused its discretion in allowing the jury to listen to a portion of one of the victim's recorded testimony. On that issue, I agree with most of the Court's analysis, but dissent from its conclusion that no prejudice resulted. As a result, 

### I disagree with the Courtlsresolution of issue 2. The portion of M.H. Is testimany which was replayed for the jury was specific to acts of sexual intercourse and sexual abuse between M.H. and Henrich alleged to have occurred 

### in January and February of 1992. The only testimony regarding those acts came 

### from M.H. and Henrich; needless to say, those testimonies were contradictory. Clearly, the jury's determinations regarding the credibility of the witnesses and the weight to be given to the respectiveand opposite versions of eventsoffered by the Stateand Henrich were critical factors here. Under such a circumstance, and given the emotional nature of M.H. 'stestimony replayed to the jury, 

### I cannot agree with the Court's conclusion that 

### Henrich was 

### not prejudiced. Under these circumstances, replaying that portion of M.H.Is testimony unduly emphasizedthe testimony of thevictim overthat of the accused, to the prejudice of the latter. I conclude that the District Court abused its discretion in allowing the jury to hear again the portion of M.H.'s testimony 

### at issue here.