NO. 95-063 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ERNEST0 RENDON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James B. Obie, Attorney at Law, 

Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Cregg W. Coughlin, Assistant Attorney 

General, Helena, Montana 

Mike McGrath, Lewis and Clark County Attorney, 

Vicki Frazier, Deputy County Attorney, 

Helena, Montana 

Submitted on Briefs: August 10, 1995 

Decided: September 21, 1995 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant Ernest0 Rendon was charged by information, filed in 

the District Court for the First Judicial District in Lewis and 

Clark County, with felony assault, in violation of § 45-5-201(l) (a) 

and (3), MCA. Following a nonjury trial, he was found guilty of 

the crime charged. Rendon was sentenced to serve five years in the 

Montana State Prison. However, his sentence was suspended, based 

on several conditions. Rendon appeals his conviction. We affirm 

the judgment of the District Court. 

Rendon raises two issues on appeal: 

1. Did the District Court err when it denied Rendon's motion 

for mistrial on the basis of an allegation that the victim was 

coached while on the stand? 

2. Did the District Court abuse its discretion when it 

excluded evidence intended to attack the credibility of the 

victim's mother? 

FACTUAL BACKGROUND 

Ernest0 Rendon lived with his girlfriend, Melanie Schmaus, and 

M.S., her son, for several years. On May 30, 1994, Rendon looked 

after M.S. in their family home while Schmaus worked a 4-11 p.m. 

shift. Schmaus stayed after work that night and drank several 

beers with her co-workers. When Schmaus arrived home at around 2 

a.m., Rendon told her that her son had been injured earlier in the 

evening when he hit his head on the coffee table. Schmaus went 

into M.S.'s bedroom to check on him, but Rendon told her to let the 

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child sleep. While in the bedroom, Schmaus could see a large 

bruise across the side of M.S.'s face. 

When Schmaus returned from work the next day and examined 

M.S.'s bruises, she was told by M.S. that Rendon had struck him. 

The following day, on June 1, 1994, Schmaus took M.S. to the 

emergency room at St. Peter's Hospital, where he was examined by 

James Hoyne, M.D., the emergency room doctor. 

Dr. Hoyne testified at trial that when he examined M.S. he had 

marks on the right side of his face and significant bruises on the 

left side of his face. Dr. Hoyne described the bruises on the left 

side of M.S.'s face as "three separate lines approximately an inch 

wide, separated by half-an-inch, what [sic] appeared to be starting 

at the cheek and going across the ear towards the forehead." Dr. 

Hoyne testified that the bruises were caused by significant force 

and were consistent with M.S. having been struck by a hand. 

According to Dr. Hoyne, M.S. told him during the examination that 

he had been hit in the face. Dr. Hoyne testified that Schmaus was 

probably in the room at the time, but that M.S. did not need any 

coaching to describe what had happened to him. 

At trial, M.S. testified that Rendon had been mad at him and 

had "hitted me really fast." When he was asked to demonstrate what 

had happened, M.S. used his right hand and swung it toward the left 

side of his face. M.S. also indicated that Rendon had pushed him. 

After the State presented its evidence, Rendon called a 

witness who testified that M.S. had been coached by a courtroom 

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observer while he gave his testimony. According to the witness, 

the observer would nod or shake her head in response to the State's 

questions, and M.S. would pause and answer consistently with the 

head motion. On the basis of this testimony, Rendon moved for a 

mistrial. However, the motion was denied. The District Court 

stated that based on its observation, the victim did not look to 

anyone for advice while he gave his testimony. The court also 

concluded that most of the critical testimony was not in the form 

of "yes" or "no" answers which could have been coached. 

Rendon attempted to introduce evidence at trial to show 

Schmaus's intense dislike of and bias against him. It was Rendon's 

contention that this bias would indicate that Schmaus would "do 

everything she can against [Rendon] and lie to whatever extent 

necessary." Rendon further claimed that this evidence would 

suggest that Schmaus had instructed her son to testify falsely 

against him. The court, however, excluded the evidence, based on 

its conclusion that it was irrelevant. 

ISSUE 1 

Did the District Court err when it denied Rendon's motion for 

mistrial on the basis of an allegation that the victim was coached 

while on the stand? 

The standard of review for a district court's denial of a 

mistrial is whether there is clear and convincing evidence that the 

court's ruling is erroneous. State V. Greytak (1993), 262 Mont. 401, 

404, 865 P.2d 1096, 1098. This Court has held that a mistrial is 

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appropriate Only when there is a demonstration of manifest 

necessity and where the defendant has been denied a fair and 

impartial trial. Greytak, 865 P.Zd at 1098. 

Rendon maintains that the District Court erred when it denied 

his motion for mistrial based on the alleged coaching of the victim 

by a courtroom observer. He asserts that he was denied his Sixth 

Amendment right to confront the witness, whom he contends was 

actually the courtroom observer. Rendon offers as evidence only 

the testimony of a witness who observed the alleged coaching. This 

witness admitted that he did not have a view of M.S. to determine 

if M.S. was watching the courtroom observer before he responded. 

The trial judge, on the other hand, noted that he had watched M.S. 

during his testimony and that he did not appear to be looking for 

assistance. 

Based on the record, we conclude that the District Court did 

not err when it denied Rendon's motion for a mistrial. The 

district court is in the best position to determine whether 

coaching of a witness has occurred, and if so, has broad discretion 

to determine whether such coaching has been prejudicial to either 

party. 

The court stated that based on its observation, M.S. was not 

looking to anyone to aid his testimony. M.S. answered critical 

questions in complete sentences in his own words. The court also 

concluded that most of M.S.'s responses were not the type of 

answers that could have been coached from the audience. 

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We conclude that there is not clear and convincing evidence 

that the District Court's denial of Rendon's motion for mistrial 

was erroneous. We affirm the District Court's denial of Rendon's 

motion for mistrial. 

ISSUE 2 

Did the District Court abuse its discretion when it excluded 

evidence intended to attack the credibility of the victim's mother? 

The standard of review for district court evidentiary rulings 

is whether the court abused its discretion. State v. Gollehon ( 19 9 3 ) , 

262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of 

whether evidence is relevant and admissible is left to the sound 

discretion of the trial judge, and absent a showing of abuse of 

discretion, will not be overturned. Gollehon , 864 P.2d at 1263. 

Rendon contends that the District Court erred when it 

prohibited him from introducing evidence about the victim's mother, 

Melanie Schmaus. The proffered evidence consisted of testimony 

about the antagonistic relationship between Rendon and Schmaus as 

illustrated by several specific acts of conduct. Rendon argues 

that the purpose of the evidence was to establish the bias or 

motive of Schmaus to testify falsely against him at trial and to 

influence the testimony of her son. 

The District Court excluded the proposed evidence, based on 

its conclusion that the evidence was irrelevant. Rule 401, 

M.R.Evid., defines relevant evidence as "evidence having any 

tendency to make the existence of any fact that is of consequence 

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to the determination of the action more probable or less probable 

than it would be without the evidence." 

The District Court took note of the poor relationship between 

Schmaus and Rendon in its decision, but held that Rendon's 

conviction did not depend on Schmaus's testimony. Schmaus's 

testimony was basically foundational and undisputed. Rendon's 

conviction was supported primarily by physical evidence which was 

inconsistent with his version of events and the direct testimony of 

M.S. Furthermore, since the District Court was already aware of 

the hostility between Schmaus and Rendon, the proffered evidence 

would have, at best, been cumulative. 

We conclude that the District Court did not abuse its 

discretion when it excluded evidence designed to attack the 

credibility of the victim's mother. 

We affirm appellant's conviction for felony assault. 

/ 

JU ice 

We co*cuc: