No. 86-21 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF 

J.W.K., a Youth under the 

age of Eighteen Years. 

APPEAL FR.OM: District Court of the Seventeenth Judicial District, 

In and for the County of Valley, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David L. Irving, Glasgow, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

David Nielsen, County Attorney, Glasgow, Montana 

Filed: 

Submitted on Briefs: May 30, 1986 

Decided: August 19, 1986 

AUG 1 9 1986 

a% 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The Valley County District Court found J.W.K., a minor, 

guilty of sexual assault, and ordered him committed to the 

Pine Hills School for Boys. He appeals the conviction. 

We affirm. 

Appellant raises three issues on appeal: 

1. Did the District Court err in admitting the opinion 

testimony of a psychologist as to the truthfulness and 

reliability of children's testimony? 

2. Did the District Court err in denying appellant's 

motion to suppress his admission? 

3. Is there substantial credible evidence in the record 

to support the findings of the District Court? 

At the time of the incident in question, appellant was 

thirteen years old. He did occasional babysitting work for 

several families in the Glasgow area. In December of 1984, 

he babysat M.B., J.B., and D.B. M.B. and J.B. were five and 

six years old. 

In the spring of 1985, J.B. and M.B. exhibited 

precocious sexual knowledge at their day care center. This 

information was brought to the attention of Beverly Miller, a 

social worker. In April, Ms. Miller interviewed J.B. and 

M.B. separately, and through the use of anatomically correct 

dolls learned that the children had been sexually abused. 

Ms. Miller reported her observations to the county attorney. 

On April 24, 1985, an investigator with the county 

attorney's office interviewed J.B. and M.B. Based upon that 

interview, the investigator questioned appellant. Appellant 

denied the allegations of sexual abuse. 
Ms. Miller then spoke to appellant and told him she knew 

of the incident. He then attempted to described the 

incident. She stopped him and suggested he talk further with 

the officer investigating the case. 

On May 9, 1985, the investigator conducted a second 

interview with appellant. Before the interview, appellant 

and his mother executed a written acknowledgement and waiver 

of rights. Appellant's mother was present during the first 

part of the interview, but later left the room at her son's 

request. The interview was taped. A twelve page transcript 

of the interview was prepared and the tapes were erased. 

During this interview, appellant admitted he had sexually 

assaulted J.B. 

On May 23, 1985, appellant was charged with theft, 

criminal mischief, and sexual assault. A pretrial agreement 

was executed whereby appellant admitted the theft and 

criminal mischief charges and was sent to the Pine Hills 

School for a forty-five day evaluation. Dr. George Hossack 

conducted a psychological evaluation of appellant at the 

school. 

An adjudicatory and dispositional hearing was held 

October 1, 1985. J.B. and M.B. testified against appellant. 

Dr. Hossack testified that appellant admitted the alleged 

crime to him and he recommended further treatment at Pine 

Hills. He also testified that five and six year old children 

are unable to sustain a lie about sexual abuse. 

The District Court found that appellant did commit the 

crime of sexual assault and adjudged the appellant to be a 

delinquent youth. He was ordered committed to Pine Hills. 

Appellant's first issue is whether the District Court 

erred in admitting the opinion testimony of Dr. Hossack as to 
the truthfulness and reliability of children's testimony. 

Appellant makes three arguments. First, appellant argues 

that the testimony was beyond the scope of cross-examination 

as provided in Rule 611, M.R.Evid. We disagree. 

Rule 611, M.R.Evid. states: 

(b) Scope of cross-examination. 

(1) Cross-examination should be limited to the 

subject matter of the direct examination and 

matters affecting the credibility of the witnesses. 

The court may, in the exercise of discretion, 

permit inquiry into additional matters as if on 

direct examination. 

As this rule indicates, the scoge of cross-examination is 

within the discretion of the trial court and this Court will 

not disturb the District Court's ruling absent a clear abuse 

of discretion. State v. Hart (Mont. 1981), 625 P.2d 21, 38 

St.Rep. 133. Dr. Hossack's testimony aided the trier of fact 

and the District Court did not abuse its discretion in 

allowing it. 

Appellant next argues that Dr. Hossack was not qualified 

or submitted to the court as an expert and the court did not 

accept or rule on his qualifications. 

Rule 702, M.R.Evid. states: 

If scientific, technical, or other specialized 

knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in 

issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or 

education may testify thereto in the form of an 

opinion or otherwise. 

The determination that a witness is an expert is within 

the discretion of the trial court and will not be disturbed 

on appeal without a showing of abuse of that discretion. 

State v. Berg (Mont. 1985), 697 P.2d 1365, 42 St.Rep. 518. 

Here we find no abuse of discretion. Dr. Hossack testified 

he was a licensed psychologist employed at Pine Hills for 

three years. He had done hundreds of psychological 
evaluations. Fifteen to twenty a year are related to sexual 

abuse cases. He further testified that he was a consultant 

for two public school systems and worked for two 

pediatricians doing psychological evaluations for fifteen 

years. The District Court did not abuse its discretion by 

allowing Dr. Hossack to testify concerning the reliability of 

children's testimony. 

Although the District Court did not formally acknowledge 

the doctor as an expert, we hold that the District Court made 

the determination that the witness was qualified when it 

overruled the appellant's objection and permitted him to 

testify. Berg, 697 P.2d at 1367. Further, appellant's 

objections as to Dr. Hosasack's qualifications go to the 

weight rather than the admissibility of the testimony. - Id. 

Appellant finally argues that Dr. Hossack's testimony 

was not responsive. We do not agree. Since appellant denied 

the charge of sexual assault, the victim's credibility was an 

issue. Therefore, it wa.s proper for the District Court to 

allow Dr. Hossack to testify as to the reliability of 

children's testimony. An expert may not testify concerning 

the credibility and reliability of a particular witness. 

State v. Brodniak (Mont. 1986), 718 P.2d 322, 43 St.Rep. 755. 

However testimony concerning the reliability of a particular 

class of witnesses, such as juvenile victims of sexual abuse, 

is admissible. People v. Ashley (Colo. App. 1984), 687 P.2d 

473; State v. Middleton (Or. 1983), 657 P.2d 1215. 

Appellant's arguments on this issue are not persuasive. 

Appellant's second issue is whether the District Court 

erred in denying his motion to suppress his confession. At 

trial, the State offered into evidence a transcript of 

appellant's confession. Appellant objected, and the judge 
allowed the transcript into evidence but reserved ruling on 

its admissibility until hearing the testimony. The judge 

later admitted the transcript over appellant's objection. 

Appellant did not file his motion to suppress until the 

first day of trial in violation of S 46-13-301(3), MCA. 

However, the State failed to object to the timeliness of the 

motion at trial and so has waived the objection pursuant to § 

46-20-104 (2), MCA. Therefore, we will address appellant's 

arguments. 

Appellant argues that the confession was not voluntary 

pursuant to 46-13-301 (1) , MCA. The standard to be applied 

in our review of this question is whether the District 

Court's decision is supported by substantial credible 

evidence. State v. Gould (Mont. 1985), 704 P.2d 20, 42 

St.Rep. 946; State v. Grimestad (1979), 183 Mont. 29, 598 

P.2d 198. 

To determine whether an admission is voluntary, the 

court must look at the totality of the circumstances. Those 

circumstances include the background, experience, and conduct 

of the accused. 

Other appropriate considerations include the age, 

education, and intelligence of the accused, and his 

capacity to understand the warnings given him, the 

nature of his Fifth Amendment rights, and the 

consequences of waiving those rights. 

State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 

Appellant argues that his confession was not voluntary 

because he was 14 years old, had a borderline I.Q. , was 

strongly dependent on his mother, and confessed only after 

succumbing to the pressure and promises of the police. We 

disagree. 
Appellant and his mother signed an acknowledgment and 

waiver of constitutional rights prior to the interview. 

Appellant was given intelligence tests during his 45 day 

evaluation at Pine Hills. He registered a full scale I.Q. of 

86, verbal I.Q. of 102, and performance I.Q. of 72. We have 

held a confession voluntary where the 20 year old defendant 

had a full scale I.Q. of 91, verbal I.Q. of 99, and 

performance I.Q. of 83. State v. Phelps (Mont. 1985), 696 

Further, we held in Phelps that: 

Mental illness or deficiency does not in itself 

preclude admissibility of defendant's statements so 

long as he was capable of understanding the meaning 

and consequences of his statements. It is an 

important factor to consider in examining the 

totality of the circumstances, but it is not 

conclusive. (Citations omitted.) 

The length of the interrogation in this case, one half 

hour, is far less than the one and one half hour 

interrogation in Phelps. In addition, the confession was not 

induced by any promises of treatment on the part of the 

interrogating officer. The officer testified that he made no 

promise of treatment to appellant, but merely said there was 

help available for him. 

Given the totality of the circumstances, we cannot agree 

that the District Court's decision to admit appellant's 

confession is not supported by substantial credible evidence. 

Appellant's final issue is whether there is substantial 

credible evidence to support the findings of the District 

Court. When reviewing evidence on appeal, it will be viewed 

in the light most favorable to the prevailing party and 

district court. The credibility of the witnesses and the 

weight given to their testimony is for the determination of 
the district court in a nonjury trial. In re Jones (1978), 

176 Mont. 412, 578 P.2d 1150. 

Appellant argues there is not substantial credible 

evidence to support the finding that he committed sexual 

assault. Specifically, he argues that the testimony of the 

five year old witness and six year old victim provides 

insufficient corroboration of appellant's confession. Fle 

disagree. 

This Court has repeatedly upheld the use of juvenile 

witnesses shown to be competent through their capacity of 

expression and appreciation of the duty to tell the truth. 

State v. Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep. 305; 

State v. Rogers (Mont. 1984), 692 P.2d 2, 41 St.Rep. 2131; 

State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231. In 

this case the juvenile victim described the assault and 

identified the appellant in the courtroom. The juvenile 

witness corroborated the victim's testimony by testifying 

that appellant and the victim were in the bathroom together, 

and identified the appellant in the courtroom. Two doctors 

testified that appellant exhibited characteristics typical of 

adolescent sexual offenders. Finally, appellant admitted to 

a doctor at Pine Hills and the interrogating officer that he 

committed the assault. 

There is substantial credible evidence in the record to 

support the conclusion of the District Court that appellant 

committed sexual assault. 

The decision of the District Court is affirmed in all 

respects. 
We Concur: 

Chief Justice