No. 89-366 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsFRANK HENRY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.R. McNeil, Judge presiding. 

COfJNSEL OF RECORD: 

For Appellant: 

Timothy J. Lape, Polson, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer Anders, Asst. Atty. General, Helena 

Larry J. Nistler, County Attorney; Mark L. Sterrnitz, 

Deputy, Polson, Montana 

Submitted on Briefs: Dec. 1, 1989 

Decided: March 2, 1990 

Filed: 
Justice Diane G. Barz delivered the Opinion of the Court. 

Defendant Frank Henry was charged by information with the 

offense of sexual intercourse without consent pursuant to § 45-5- 

503 (1) , MCA. Defendant pled not guilty. A jury trial was held 

January 5 and 6, 1989. The jury returned a guilty verdict on 

January 6, 1989. Defendant appeals the conviction. We affirm. 

The following three issues are raised on appeal. 

1. Whether the jury panel was selected contrary to law and 

in violation of defendant's right to a trial by a fair and 

impartial jury; 

2. whether the District Court erred in denying defendant's 

motion to dismiss the charge based upon the alleged suppression of 

exculpatory evidence; and 

3. whether the District Court erred in allowing into evidence 

photographs of scratches on defendant's torso. 

On September 20, 1988, Samantha Kenmille accompanied her 

sister and brother-in-law, Lori and Darrell Gross, to the Wolf Den 

Bar in Polson, Montana. After consuming several beers at the Wolf 

Den, the trio went to the Smokehouse Bar where they remained until 

closing. While at the Smokehouse Bar, Darrell Gross introduced 

Samantha Kenmille to defendant, Frank Henry. Samantha had not met 

defendant prior to that evening. At the closing of the Smokehouse 

Bar, Samantha, Lori, Darrell and defendant left the bar to go to 

Jack and Zoe Dulongs' house for a party. At the Dulong residence, 

the defendant and Samantha engaged in conversation and became 

physically friendly by kissing. After about one and one-half hours 

2 
at the Dulong residence, defendant invited Samantha, Lori and 

Darrell to his house for a sauna. The four left in the Grosses1 

van, however, only defendant and Samantha were dropped off at 

defendant's house because Lori and Darrell decided to return to the 

party. 

Once at defendant's house, the two sat in the living room and 

watched television. Prior to entering the sauna, Samantha 

expressed to defendant that she would like to leave. Defendant, 

however, insisted that she stay since the sauna was ready and he 

did not want to waste energy. Samantha followed defendant to the 

sauna and entered the sauna room by herself fully clothed. 

Defendant slammed the sauna door behind her and held it shut for 

ten or fifteen seconds. Samantha testified that defendant's antics 

frightened her. Upon opening the door, defendant laughed and told 

her that he usually takes his clothes off before taking a sauna. 

Defendant then left the bathroom area. 

Samantha shut the bathroom door, undressed and entered the 

sauna alone wearing her bra and underwear. Defendant undressed in 

another room and joined Samantha wearing only his underwear. 

Defendant sat on the bench next to Samantha and kissed her. No 

other physical contact, hugging or foreplay occurred between them 

until defendant suddenly forced Samantha's legs apart and tore off 

her underwear. He also pushed her bra up and began slapping her 

breasts. Samantha testified that the slaps hurt and she became 

very afraid. During this time, Samantha tried to push the 

defendant away and forcefully told him Itno." Defendant, however, 
was on top of her, physically overpowered her and then had sexual 

intercourse with Samantha without her consent. Defendant failed 

to climax and then ceased the act of intercourse. Defendant 

subsequently left the sauna. 

Samantha grabbed her clothes, got dressed, and ran out the 

door, leaving behind her torn underwear and coat. She ran back to 

the Dulongsl house to find her sister Lori and brother-in-law 

Darrell. Darrell testified that Samantha was crying and appeared 

very upset when she arrived back at the Dulong residence. Samantha 

told Lori and Darrell that defendant was a ''jerk1' and that he had 

''beat her up." All three--Samantha, Lori and Darrell--returned to 

defendant's house to get Samantha's coat because Samantha was 

afraid to go back to defendant s house by herself. On the way back 

to defendant's house, Samantha admitted to Lori that defendant had 

raped her. 

Once at defendant's house, they knocked on the door and 

defendant answered the door wearing only a pair of pants. Darrell 

testified that defendant's chest was very red and his arm was 

scratched. While searching for Samantha's coat, Darrell discovered 

the torn underwear in the sauna. He confronted defendant, who 

initially denied doing anything. An argument ensued between the 

two men, and Lori at one point stood between the two men and tried 

to push defendant away from Darrell. 

Lori and Darrell took Samantha to the police station where she 

was interviewed by Officer Erickson at approximately 5:30 a.m. 

Samantha was very upset and was initially unable the talk about the 
incident. The officer detected an odor of alcohol but testified 

that she did not appear to be intoxicated. When he discovered that 

penetration had occurred, the officer called Detective Smith. 

Detective Smith marked and bagged Samantha's underwear and sent her 

to the hospital where she was examined. The examining nurse 

reported bruises on Samantha's left breast and inner thigh. The 

medical report specified that while no external pelvic trauma 

existed, Samantha was "crying, I' "quite upsetn and "unable to talk. 

Defendant was subsequently arrested on the afternoon of 

September 21, 1988, at the Smokehouse Bar in Polson. In his 

voluntary statement to the police, he contended that the act of 

sexual intercourse was consensual. Defendant was charged by 

information with the offense of sexual intercourse without consent 

as specified under 5 45-5-503(1), MCA. Defendant pled not guilty. 

A jury trial was held January 5 and 6, 1989. The jury returned a 

verdict of guilty on January 6, 1989. Defendant appeals the 

conviction. 

The first issue defendant raises on appeal is whether the jury 

panel was selected contrary to law and in violation of defendant's 

right to a trial by a fair and impartial jury. 

In the present case, the court authorized the jury 

commissioner to excuse those prospective jurors who were drawn and 

called for this trial who had an obvious undue hardship. Those 

without an obvious hardship were required to obtain a personal 

excuse from the court. The court acknowledged that prospective 

jurors were dismissed prior to trial who had demonstrated an undue 
hardship. 

Defendant argues that six jurors were excused and that these 

jurors did not submit an affidavit stating their hardship nor was 

a record kept as to the reason these jurors were excused at the 

pretrial stage. Apparently, the basis of defendant's pretrial 

objection is that at least one of the prospective jurors from the 

jury pool, who qualified to serve as a trial juror, was not in fact 

called for this particular trial. Defendant therefore argues that 

under 3 3-15-313, MCA, the jury panel was selected contrary to law 

and in violation of his right to trial by a fair and impartial 

jury. Section 3-15-313, MCA, provides that 

(1) The court or jury commissioner with the 

approval of the court shall excuse a person 

from jury service upon finding that jury 

service would entail undue hardship for the 

person or the public served by the person. 

(2) If a person believes jury service would 

entail undue hardship for him or the public 

served, he may make and transmit an affidavit 

to the jury commissioner for which he is 

summoned, stating his occupation or such other 

facts as he believes will excuse him from jury 

service. The affidavit shall be filed with 

the jury commissioner, who shall transmit it 

to the court. The court or jury commissioner 

with the approval of the court may excuse a 

prospective juror from jury service if the 

prospective juror satisfies the provisions of 

subsection (1) . 

In particular, defendant argues that the submitting of affidavits 

by those jurors who claim an undue hardship is mandatory under B 

3-15-313, MCA, and that failure to do so created a material 

deviation in procuring a jury and therefore is a denial of 

defendant's constitutional rights. We disagree. 
Section 3-15-313 (2) , MCA, must be read in light of all the 

statutes addressing juries and jurors. See 95 3-15-101 through 

-802, MCA. In particular, § 3-15-401, MCA, provides that each year 

the chairman of the board of county commissioners and the county 

clerk and recorder of each county must meet for the purpose of 

compiling a list of persons to serve as prospective jurors for the 

ensuing year. Once these prospective jurors are drawn, the clerk 

shall serve them notice by mail and require a response by mail as 

to their qualifications to serve as trial jurors. The clerk may 

also attach I1a form for an affidavit claiming an excuse as provided 

for in 3-15-313. . . " Section 3-15-505, MCA. If a prospective 

juror does not return an affidavit claiming an undue hardship, that 

prospective juror is then placed on the jury list for the term 

specified by the court. When jurors are needed for a pending 

trial, the jury commissioner will draw from the pool of jurors the 

number of jurors ordered to be drawn by the court. Section 3-15- 

503 (I), MCA. Once the jurors are drawn from the pool, the 

prospective juror notified may then attempt to demonstrate an undue 

hardship so as to be excused from serving on that particular jury 

panel. Section 3-15-313(1), MCA. If the prospective juror 

succeeds in demonstrating undue hardship, the juror will be excused 

for that jury trial but will remain on the jury list for the 

remaining jury term and may be summoned to serve on a subsequent 

jury during that term. Contrary to what defendant asserts, 

however, the statutes do not demand the filing of an affidavit 

demonstrating an undue hardship at this stage of the jury selection 
process. No deviation occurred in the selection of the impaneled 

jury in this case. The record demonstrates that thirty prospective 

jurors appeared on the morning of trial. Of the first twenty-four 

prospective jurors questioned, only one was excused for cause 

during voir dire, which left five prospective jurors called for 

jury duty who were never questioned. As this Court has frequently 

stated: 

The accused cannot complain if he is still 

tried by an impartial jury. He can demand 

nothing more. The right to challenge is the 

right to reject, not to select, a juror. If 

from those who remain, an impartial jury is 

obtained, the constitutional right of the 

accused is maintained. 

Territory v. Roberts (1889), 9 Mont. 12, 14, 22 P. 132, 133 (citing 

Hayes v. Missouri (1887), 120 U.S. 68, 71, 7 S.Ct. 350, 352, 30 

L.Ed. 578, 580) ; See also State v. Coleman (1978), 177 Mont. 1, 25- 

26, 579 P.2d 732, 747. In light of the above, defendant's 

assertion that he was denied his constitutional right to a trial 

by an impartial jury because of a deviation in the jury selection 

process is unfounded and without merit. 

The second issue raised on appeal is whether the District 

Court erred in denying defendant's motion to dismiss the charge 

based upon the alleged suppression of exculpatory evidence. 

Prior to trial, defendant had filed a motion in limine 

requesting the exclusion of all evidence concerning the scratches 

on his torso because it would potentially refute his defense of 

consent. Defendant claimed that the reason for exclusion of such 

evidence was "that its probative value is substantially outweighed 
by the danger of unfair prejudice." The District Court denied the 

motion. 

At trial, after the State had given its opening statement to 

the jury, defendant's attorney received from Officer Hunter a copy 

of a written statement by Lori Gross. The statement stated in 

pertinent part that: 

Frank let us in and Darrell asked Frank why he 

slapped Sam. He was saying he didn't and 

Darrell walked over to the sauna and picked up 

Sam's underware [sic], which were all torn. 

Darrell asked Frank about it and Frank started 

to attack Darrell so I stepped between them 

and held Frank back at my arm's length. He 

didn't have any visible scratches at this time 

even to when we left so it had to be by his 

own hand or by unintentionable [sic] mistake 

of my own hand holding him back . . . 

The record demonstrates that neither defense counsel nor the 

prosecution had knowledge of Lori Gross's written statement prior 

to the trial. Upon discovery of Lori Gross's written statement, 

defendant made a motion to dismiss. The District Court denied the 

motion and afforded defendant an opportunity to either interview 

Lori Gross or subpoena her and call her as a witness prior to the 

defense concluding its case-in-chief. Defendant's counsel neither 

interviewed Lori Gross nor subpoenaed her as a witness. 

Defendant's counsel also did not renew his motion in limine, 

requesting the exclusion of all evidence concerning the scratches 

on defendant's torso. 

On appeal, defendant's entire argument is based upon the 

alleged suppression of Lori Gross's written statement. Defendant 

argues that the alleged suppression of this statement prejudiced 
him by denying him the opportunity to present it as an exhibit in 

support of his pretrial motion in limine. Defendant, however, had 

the opportunity to renew his motion in limine after the State's 

opening statement, but failed to do so. The defendant cannot now 

raise the issue on appeal when he failed to renew his motion before 

the District Court. As this Court stated in Rasmussen v. Sibert 

(1969), 153 Mont. 286, 456 P.2d 835, "[tlo hold otherwise would 

. . . put the trial court in error on an issue which had not been 

presented to it for ruling . . . Rasmussen, 153 Mont. at 295, 456 

P.2d at 840. In addition, defendant's argument alleging that the 

written statement was suppressed is without merit in light of State 

v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586, where this Court 

held that "[e]vidence is not withheld or suppressed if the 

defendant has knowledge of the facts or circumstances, or if the 

facts become available to him during trial." Kirkland, 184 Mont. 

at 243, 602 P.2d at 595. 

In light of defendant's failure to renew his motion in limine 

at the time Lori Gross's written statement was discovered and in 

light of this Court's holding in Kirkland, we uphold the District 

Court's decision to deny defendant's motion to dismiss the charge. 

The third issue raised on appeal is whether the District Court 

erred in allowing into evidence photographs of scratches on 

defendant's torso. 

Defendant argues that the District Court erred by allowing 

into evidence the photographs illustrating the scratches that were 

present on defendant's torso on the evening of September 21, 1988. 
Defendant argues that the probative value of these photographs were 

never explained to the jury. Defendant also argues that these 

photographs were introduced to arouse the sympathies and passions 

of the jury and were not substantially necessary or instructive to 

material facts. 

The question of an evidence's admissibility is a question of 

law, whereas the weight that is attributed to that evidence is left 

to the trier of fact. When determining whether a piece of evidence 

is admissible, a district court must find that the evidence is both 

relevant and competent. Rule 403, M.R.Evid., however, further 

provides that: 

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. 

At trial, a district court has the discretion in determining 

whether the evidence is relevant and also whether the factors in 

Rule 403, M.R.Evid. would preclude otherwise relevant evidence from 

being admitted. State v. Doll (1985), 214 Mont. 390, 399, 692 P.2d 

473, 477. A district court therefore must determine whether the 

probative value of verified photographs outweighs any prejudicial 

effect. State v. Grant (1986), 221 Mont. 122, 136, 717 P.2d 562, 

The foundation testimony for the photographs in this case was 

provided by Detective Hunter. After being shown the photographs, 

Detective Hunter testified that he took the pictures on the night 
they arrested the defendant and that the photographs accurately 

portrayed the scene that was photographed. The State's attorney 

subsequently questioned defendant as to the source of the scratches 

and as to whether Lori Gross clawed him with her fingernails. As 

this Court stated in State v. Sigler (1984), 210 Mont. 248, 688 

P.2d 749, a jury is entitled to know the nature and extent of the 

injuries. Sisler, 210 Mont. at 256, 688 P.2d at 753. The 

photographs in this case were relevant in that they aided the jury 

in understanding the nature and the extent of defendant's injury. 

The photographs thus were also available to the jury to aide them 

in determining, along with the other available evidence, the 

possible source of the scratches. The probative value of a 

photograph does not necessarily need to be explained to the jury 

in detail for it to be properly admitted. The District Court did 

not err in determining that the probative value of the photographs 

outweighed the prejudice, if any, to defendant. 

Affirmed. 

We concur: