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 Judicial District, 

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 County Attorney, 

Bozeman, Montana 

Filed: 

Submitted on Briefs: October 28, 1994 

Decided: December 8, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On April 23, 1993, defendant Steven Henrich was charged by 

information filed in the District Court for the Eighteenth Judicial 

District in Gallatin County with endangering the welfare of 

children, a misdemeanor, in violation 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, in violation of 5 45-5-507, MCA; 

two counts of sexual assault, a felony, in violation 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 af f irm in part and reverse in part. 

The issues on appeal are rephrased as follows: 

1. Did the District Court abuse its discretion when it 

refused to grant Henrich's motion 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? 

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's recorded 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 err when 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 on January 22, 1976, and A.H., born on May 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 five years. 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, Henrich would occasionally take her to the woods 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 in West 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 the 
dormitories, Henrich had sexual intercourse with her. She also 

testified about several different time periods during which Henrich 

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 intercourse without 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 spanked her with a cribbage board. 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's abuse. 

She testified that in 1991 or 1992 Henrich, on different 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. Following A.H.'s report, 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 

Bozeman Chronicle published two stories about Henrich. 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. 

The next morning, Judge Thomas A. Olson discussed 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 Olson placed 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 they had observed or 

heard about the details of the television coverage. As a result, 

the court allowed the trial to continue. Henrichfs counsel 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 numerous errors warrant reversal of his convictions. 

We affirm in part and reverse in part. 

ISSUE 1 

Did the District Court abuse its discretion when it refused to 

grant Henrich's motion 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's denial 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 

6 
court'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 and Article 11, Section 4, 

of the Montana Constitution, because of the second newspaper 

article. The article was entitled "Man Faces Pimping Charges, " 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 Estes v. Texas (1965) , 

381 U.S. 532, 85 S. Ct, 1628, 14 L. Ed. 2d 543. This case is more 

analogous to our previous decisions regarding prejudicial news 

releases during a trial. SeeStatev. Kirkland (l979), 184 Mont. 229, 602 

P.2d 586; State v. Weaver (l98l), 195 Mont. 481, 637 P.2d 23. 

In Kirkland, television broadcasts during the trial labeled the 

defendant as a hired killer. The district court denied the 

defendant's motion for a mistrial and admonished the jury to decide 

the case based 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, 602 
P.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's right 

to a fair trial had been prejudiced by publicity is within a 

district court's sound discretion. Kirkland, 602 P. 2d at 594 (citing 

Marshallv. Unitedstates (1959), 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 

1250) . We reaf f irmed this notion in Weaver. In Weaver, the 

defendant claimed he was denied a fair trial because 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 does not require a district court 

to individually question jurors regarding publicity, 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's admonitions were sufficient to cure any possible prejudice. 

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 or knowing of 
its 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's motions 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's recorded testimony during deliberations? 

Our standard of review of a district court's decision to allow 

or disallow a jury's request 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 any 
point 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, in the discretion of the court, after consultation 

with the parties. 

The common law rule was designed to prevent undue emphasis being 

placed on materials 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 in State 

v. Harris (1991), 247 Mont. 405, 808 P.2d 453, and restated it in 

Evans, 862 P.2d at 419-20. When dealing with requests from the jury 

about witness testimony, the courts should answer the request with 

this instruction: 

It would be error for me to furnish you with 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 a whole in rendering your verdict. 

However, if you have some particular reason or point that 

you are 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.2d at 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 testimony 
regarding basic factual matters like "the width 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 that M.H. 's entire 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 a procedural error is a basis 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 Henrich was 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 other witnesses have testified about the same point. Evans, 

862 P.2d at 420. 

In Evans, the defendant was charged with obstructing justice. 

A critical element was whether the defendant knew the person hiding 

in his home was an offender. Several witnesses testified to this 

crucial element, including a detective. The jury requested to 

rehear part of the detective's testimony, and the court refused the 

request. We affirmed the district court because replaying the 

detective's testimony on a critical point of proof about which 
several 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 a portion of M.H.'s 

testimony without 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 

proven beyond a reasonable doubt. State v. Cates (1990) , 241 Mont . 282, 

285, 787 P.2d 319, 321. Henrich argues that the only evidence 

supporting his conviction was testimony by A.H. and M.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 reasonable mind 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, the victims' testimony 

need not be corroborated. Statev. Gilpin (1988), 232 Mont. 56, 70, 756 

P.2d 445, 453. The weight and credibility of witnesses is 

exclusively within the province of the jury. State v. 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 jurors are in the best position to draw or 

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 testimony was 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 children pursuant 

to 5 45-5-622 (2) (a) (i) , MCA, by supplying M.H. with an intoxicating 

substance. An intoxicating substance is a controlled substance as 

defined in Title 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 this 
offense 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. State v. 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 circumstances must be entirely consistent with guilt 

and inconsistent with any other rational theory. State v. Starr (1983), 

204 Mont. 210, 215, 664 P.2d 893, 896 (citing Statev. Stoddard (l966), 

147 Mont. 402, 412 P.2d 827). 

In Dunn, 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 combination of 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 establish Henrich was guilty of the charged offense. 

M.H.'s unqualified opinion is insufficient to establish that the 

alleged drug was methamphetamine. The State did not introduce a 
bottle of the pills, any analysis of the pills, or any expert 

analysis of M.H.'s reaction 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 that Henrich's other convictions were supported by 

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? 

Henrich moved for a mistrial based on the admission of hearsay 

evidence. We will affirm a district court's denial of a motion for 

mistrial unless there is clear and convincing proof that the 

district court erred in its ruling. Greytak, 865 P.2d at 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. The 
court ordered that the testimony of Bricco regarding the abuse of 

M.H. be stricken, admonished the jury to ignore it, and denied 

Henrich's motion 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. 's testimony to the 

same facts in person. 

Henrich challenges other aspects of Bricco's testimony. 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 is usually kept within the family. 

Henrich now argues that Bricco lacked personal knowledge to answer 

this question, or was not an expert qualified to render an opinion 

on this issue, and Bricco's testimony improperly bolstered A.H.'s 

testimony. 

We do not decide whether Bricco's testimony is relevant 

evidence, but only address the issue raised by Henrich's objection, 
i.e., whether Bricco was qualified or had 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, knowledge may, 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 saw hundreds 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 for purposes of parole eligibility. Although he 

17 
cites no case authority, and does not claim that the court failed 

to articulate its reasons, he asserts several challenges. 

Henrich's main 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 "does not 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 sentencing hearing. Because of 

the nature and the duration of the abuse, the court found that 

Henrich was a substantial danger 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 similar argument in State v. Krantz (1990) , 241 Mont . 501, 

788 P.2d 298, cert. denied (l99O), 498 U.S. 938, where we stated that 

notice of the sentencing hearing itself is sufficient notice of a 
potential dangerous offender designation because the sentencing 

court is required to consider the issue. Krantz, 788 P.2d at 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 

reasonable doubt. Rather, the Montana Legislature has decided that 

the dangerous offender determination is a sentencing factor. 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 offender did 

not violate Henrich's right to due process. 

ISSUE 6 

Did the District Court err when it sentenced Henrich to the 

Montana State Prison? 

Henrich contends that his sentence to the Montana State Prison 

was contrary to our decision in Statev.hlay (1991), 249 Mont. 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 a prerequisite 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 right 
against self-incrimination, as protected by the Fifth Amendment, 

because he was sentenced to prison for refusing to confess to the 

crime. Imlay, 813 P.2d at 985. 

Henrich's main challenge stems from a counselor's presentence 

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 in Imlay. 

Imlay does not prevent a professional counselor from testifying 

at the sentencing phase that, in his or her opinion, a defendant 

ought to be incarcerated. Rather, Imlay prevents a sentencing court 

from incarcerating a defendant for refusing 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's prospects of 

rehabilitation were slim, that the crimes continued over a 

significant time period, and that Henrich was 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 his 
guilt. 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: 
Justice Karla 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 Courtls resolution 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 

respective and opposite versions of events offered by the State and 

Henrich were critical factors here. 

Under such a circumstance, and given the emotional nature of 

M.H. 's testimony 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 

emphasized the testimony of the victim over that 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.