### NO. 93-456 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1994



### STATE OF MONTANA, Plaintiff and Respondent,

-v

### PAUL A. ALEXANDER, Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Ted 0. 

### Lympus, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Don Vernay, Kalispell,Montana For Respondent: 

### Hon. JosephP.Mazurek,AttorneyGeneral,Barbara C. 

### Harris,~ssistantAttorneyGenera1, 

### Helena,Montana; ThomasJ. Esch,Flathead CountyAttorney, ValerieD. Wilson, Deputy, Kalispell,Montana

Filed: Submitted on Briefs: February 17, 

### 1994 Decided: May 24, 1994Justice Fred J. Weber deliversd the Opinion of the Court. This is an appeal by defendant Paul A. Alexander from the judgment entered in the EleventhJudicial District Court, Flathead County, following a jury conviction of one count of sexual intercoursewithout consent and one count of sexual assault, both felonies. We affirm inpart and reverse in part and remand to the District Court for resentencing. Alexander presents two issues for our review: I. Did the District Court err in permitting the jury to hear improper hearsay testimony? 11. Did the District Court err in refusing to continue the sentencing in order to allow the inclusion of a sex offender evaluation in the Pre-Sentence Investigation? PaulA. Alexander (Alexander) was originally charged with two counts each of sexual assault and sexual intercourse without consent, all felonies, involving two of his step-grandchildren,a boy and a girl. The boywas elevenyears old at the timeAlexander

was charged with the offenses. The charges regarding the fiveyear-old girl were later dismissed upon motion by the State that she was not competent to testify. The alleged abuse of Alexander's step-grandsonhad begunwhen he was in the first or second grade andhad continueduntil he was in the fourth grade. Testimony showed that the victim was alone with his step-grandfather almostona daily basis, that they shared

a "special relationshipwand spent a good deal of time together. The victim was often alone in the house with Alexander while his
2mother, grandmother and other household members were outdoors working horses or otherwise absent. Further, the victim, his parents and older brother had stayed with the Alexanders for a period of nine months in 1988 while their home was being constructed. In April of 1992, Alexander and his wife separated. The victim's mother testified that in August of 1992, her son (the victim) came to her very upset, crying and feeling he had done something wrong because of something Alexander had done to him. The mother took him to a counselor and the sexual abuse was subsequentlyreported to the police. Alexanderwas tried before a jury on June 16 and 17, 1993, for committing the two offenses involving his step-grandson. On June 17, 1993, the jury returned

a guilty verdict for each of the offenses against the boy. Prior to the trial,onJune 16, 1993,Alexander filedaMotion in Limine to bar statements made by the victim to several persons

as inadmissible hearsay. Although the court granted the defendant's motion subject to allowance by the court pursuant to Rule 801(d)(l)(A) or 

### (B), M.R.Evid., the prosecution made several references to the material covered by Alexander's motion in its opening statement during the trial. Testimony elicited by the prosecution and objected to by Alexander as hearsay was allowed

over his ongoing objections. During a recess of the trial,Alexandermoved the court for a mistrial based on the following four points: (1) in opening statements,the State violated the Order in limineby referring tostatements made by the victim to Brad Custer, a school counselor, that the abuse had occurred in Alexander's home; (2) also in opening statements, the State violated the Order in limine by referring to statements made by the victim to Detective Maxine Lamb; (3) Brad Custer's testimony stating that the victimhad told him that the abuse occurred in his step-grandfather's house; and

(4) the testimony by the victim's mother concerning what her son had told her about the alleged abuse and what a counselor had told her concerning the abuse. Alexander's motion for a mistrial was denied. Following thatdenial of hismotion, Alexander again objected to statements introducedby Robert Piersall (Piersall),a licensed social worker inprivate practice inKalispell, who had treated the victim for sexual abuse when the victim's parents brought him to Piersall for counseling. The District Court allowed Piersall to testify about a post-traumatic stress disorder which Piersall had concluded that the victim suffered from and which was evident in children who had been sexually abused or had suffered from other traumatic events. Piersall further testified that he knew of no other traumatic events in the victim's experience. After the jury returned the guiltyverdicts againstAlexander on both counts regarding his step-grandson, a Sentencing Hearing

was set for August 5, 1993. The District Court ordered a presentence investigation. On June 24, 1993, Alexander filed a Motion forEvaluation requesting thatan evaluation be conductedto

assess his amenability to outpatient sexual offender treatment.The District Court ordered such an evaluation to be completed by Northwest Family Recovery inKalispell and ordered furtherthat it be included in the presentence investigation. Andy Hudak (Hudak), director of Northwest Family Recovery was conducting the sex offender evaluation ofAlexander. Hudakhad not completed the evaluationby August 5, 1993,the date scheduled for the Sentencing Hearing. Alexander moved to continue the hearing until the evaluation was completed; thismotion was denied by the District Court. The Statepresented information at the Sentencing Hearing concerning information Hudakhadprovided totheprosecutor regarding Alexander's amenability to treatment. In spite of the fact that the evaluationhad not been completed, the DistrictCourt sentencedAlexandertothirtyyears imprisonmentanddesignatedhim

a dangerous offender for parole purposes, with the added requirement that he must successfully complete the sex offender program at the Montana State Prison to be considered for parole. Additional facts will be supplied as necessary throughout this opinion. Issue I: Hearsay Did the District Court err in permitting the jury to hear improper hearsay testimony? Alexander contends that the District Court's admission of hearsay statements made by the victim to Brad Custer, Detective Maxine Lamb, his mother and to Robert Piersall was error and resulted in substantial prejudice to him. He contends that the pretrial Motion in Limine and resulting Order acted to enjoin the State from "referring to or using, in any manner, hearsay 5statements made by thevictims to Brad Custer,Maxine Lamb,Robert Piersall and Lauren Langmead, unless and until same are ruled allowableby the courtpursuant to Rule 801 (d)(1)(B)

# ." Alexander claims that the court then improperly allowed such hearsay statementsduring the trial,beginning with statements made by the State during its opening statements. Alexander contends that the following statementsmade by the prosecutor during her opening statements to the jury constitute reversible error:



# . . . And in Late August of 92, [the victim] began approachinghis parents saying that he felt he had done something wrong and he would be crying. He would say that Paul would tickle him on his thighs, on his legs. And theparents, as anyparent would, investigated. And they went and talked to the school counselor; and the school counselor called Maxine Lamb of the Sheriff's Department; and Maxine Lamb of the Sheriff's Department suggested they go see Brad Custer of the Department of Family Services.

So Brad Custer interviewed the child, and then referred the case back to the Flathead County Sheriff's Department. Itwasn't until the 31st of December, New Years eve thatMaxine finally interviewed [thevictim] 

# . . .After speaking with [thevictim], Maxine then spoke with the defendant,and he was interviewedby Maxine Lamb also on that day, on New Years eve, 1992. Alexander claims that the statements by the prosecutor regarding the contact of the victim with Brad Custer and Maxine Lamb constitute improperly admitted hearsay. In the District Court's Order concerning presentation of hearsay, the court stated it would not allow statementsmade by the named witnesses unless and until it ruled on the statements. Thestatements made by the prosecutor as detailed above do not constitute hearsay, but rather allude to testimony of certain witnesses to be called during the trial. Hearsay is 'la statement, other than onemade by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.I1 Rule 801(c), M.R.Evid. However, citing State v. West (1980), 190 Mont. 38, 42, 617 P.2d 1298, 1300, Alexander contends that certain statements made here aregrounds for reversal because theprosecutor's reference to inadmissible evidence in her opening statement contributed to his conviction. According to the ruling in 

### West, hearsay evidence alluded to inopening statementsmust be sohighly prejudicial that it supportsa reasonableprobability that the statements led to the defendant's conviction. West, 617 P.2d at 1300. Theprosecutor's statementsasquoted abovedonot containany statements made by Brad Custer or Maxine Lamb. They merely detail the course of events leading

### up to Detective Lamb's interviewwith the defendant. Her statements chronicle the development and investigation of the case to the point of charging Alexander with the offenses against his step-grandson. We conclude that the prosecutor's statements do not in any sense constitute testimony,

nor did they prejudice Alexander by alluding to improper witness hearsay testimony. Thus,Alexander's objection to the statements

on these bases ismisplaced. Alexander also claims certaintestimony by witnesses involved inadmissiblehearsay statements. He firstcontends that statementsmade by Brad Custer, which we quote in their entirety here, were inadmissible hearsay: Q. [byMs. Wilson]And throughyour investigation, were youable to establishwhere the alleged abused [sic] occurred? A. [byBrad Custer] Yes, Iwas. Q. And where was that,Mr. Custer? A. [The victim] told me that the incident he described occurred at his step-grandfather's house in Kalispell. He listed that as 83 Dern Road in Kalispell. Q. And would that be in Flathead County? A. Yes, it would. The District Court ruled that this testimony was in the nature of foundationand background. The State contends that this testimony by Mr. Custer was clearly elicited to establish venue in Flathead County and is not hearsay. Alexander claims that therewas never any question of or challenge tovenue. It is clear from the questions and answers in the transcript that the statements only establish the place where the incidents occurred and do not constitute testimony that Alexander was the person who committed the acts. However, our question is whether or not that can be classed as inadmissible hearsay. Rule 801(c), M.R.Evid., provides that hearsay is a statement made by someone other than the declarant offered in evidence to prove the truth of the matter asserted. Clearly, Mr. Custerls statements as set forth above were offered into evidence to prove that the incident the victim described had occurred in FlatheadCounty and as such constituted inadmissible hearsay as they were being offered by someone other than the declarant. Having determined that error was committed by allowing the prosecutor to present hearsay testimony, we next address whether that errorwasharmless. Montana follows theUnited StatesSupreme Court's test for determining what constitutes harmless error. State v. Wallace (1986), 223 Mont. 454, 458, 727 P.2d 520, 523. That definition provides: [Alnotherwisevalid conviction should not be set aside if the reviewing courtmay confidently say,on the whole record,that the constitutional errorwasharmlessbeyond a reasonable doubt. Delawarev. Van Arsdall (1986), 475U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684. We have also stated: This Court must be able to state, incases of errorwhich we regardasharmless, thatbeyond a reasonable doubt the error did not affect the outcome of the trial. State v. Daniels (1984), 210 Mont. 1, 12, 682 P.2d 173, 179,

(citing Chapman v. California (1967), 386 U.S. 18, 26, 87 

### s.c~. 824, 829, 17 L.Ed.2d 705, 711 (reh'qdenied 386 U.S. 987,87 S.Ct. 1283, 18 L.Ed.2d 241))

# . Although Mr. Custer's testimony as to the location where the offenses occurred was presentedprior to the victim's testimony, it did not includeany informationthatwas not verified by thevictim later during the course of the trial. We conclude that this did not prejudice Alexander and is harmless error according toMontana law as established by our prior cases. Alexander's next hearsay argument concerns certain statements made by 

### the victim's mother at trial when she attempted to statewhat her sonhad told her about the sexual abuse and what a friend who was a counselor had said to her about sexual abuse. The transcript indicatesthat thevictim's mother did indeed attempt to make inappropriate statements; however, counsel for defendant objected immediately and the District Court sustained the objections. Consequently, therewas no hearsay introduced through the victim's mother's testimony. Moreover, the mother's attempt to introduce hearsay evidence did not result from the prosecutor's attempt to introduce such comments; rather, it was the witness who tried to do so. The District Court ruled thatalthoughsome of the other testimony from the victim's mother may have involved some hearsay in her description of events leading up to filing charges against Alexander and obtaining counseling for her son for sexual abuse, that testimonywas also foundational in nature and not substantive enough to be of such prejudice as to warrant granting Alexander's motion for a mistrial. Alexander's final argument concerning hearsay relates to the testimony of the victim's counselor, Piersall. Piersall did not testify about anything thevictim said to him. He testified about his diagnosis that the victim was suffering from post-traumatic stress and that such stress is consistent with certain experiences in a child's life, including sexual abuse. He testified as follows: 

### Q. [By Ms. Wilson] Have you diagnosed [the victim]? 

### A. 

### [By 

### Piersall] Yes, Ihave. 10Q. 

### And can you tell me what that diagnosis is? A. Post-traumatic stress disorder. Q. 

### And what symptoms did the child display that brought you to that decision? A. Well, [the victim's] tendency was to minimize his symptomsof distress as a copingdevice,because the more hewould become awareofhis distress, then themore distressedhewould actuallybecome. So his tendencywas to down-play them. Part of my making that diagnosis is based on information reported tome by the mother 

# . . .

MR. VERNAY: 

### Your Honor,we are in hearsay. THE COURT: Well, not yet. THE WITNESS: She reported-- MR. 

### VERNAY: We are in hearsay from [themother]. THE COURT: You are objecting? MR. 

### VERNAY: Yes, I am. THE COURT: Sustained. BY MS. WILSON: Q. 

### Canyou tell me what symptoms that you directly observed of [the victim] that would be consistent with your diagnosis? A. Well, it was approximately the third or fourth meeting that 

### I had with [thevictim] that 

### I questioned him directly. MR. VERNAY: Objection, Your Honor,hearsay. THE COURT: 

### Overruled. THE WITNESS: Where I questioned [the victim] directly about his allegations of sexual abuse by Paul Alexandertowardhim. And as [the victim] wasdescribing verbally to me things that he says took place-- THE COURT: Wait aminute. Stop. This ishearsay. I am going to have to sustain the objection. You can't testify as to [the victim]-- what he said to you or things that he has done that he-- manners other thanspeechor in additionto speech,wherehe communicated to you. It is hearsay, and you are not allowed to-- THE WITNESS: Okay. I can say that he was very fearful as he relayed that information. That is something 

### I observed directly. 

### BY MS. WILSON: Q. Were there any other physical symptoms? 

### A. Well I asked him to do some drawings. Q. I guess I don't really want to get into the nature of those. A. All right. Q. Doctor, is the diagnosis of post traumatic stress disorder consistent with children who have suffered sexual abuse? A. Yes. Q. Is it also consistent with other traumatic events that occur? A. Yes. Q. Canyougive the jurorsan example of some other things that might cause post traumatic stress? 

### A. Well, overwhelming experiences, such as being involved in a car accident and receiving significant injuries,having your house burn down, being physically abused. There are numerous traumatic events that could occur that could cause this type of symptom cluster. Q. Have any of those type of occurrences been reported to you as occurring to [thevictim]? A. No, theyhaven't been reported to me. I am not aware of any? [sic] Alexander contends that Piersall's testimony violates the holding of this Court in Statev. Harris (1991), 247Mont. 405, 808 P.2d 453. Harris dealt with statements about sexual abuse made to

a counselor by a minor child who is the alleged victim of sexualabuse for purposes of diagnosis under the medical treatment exception of Rule 803(4), M.R.Evid., and under the residual exception to the hearsay rule, Rule 804(b)(5), M.R.Evid. The Harris case also discussed a counselor's testimony relating to the credibility of the child victim. Harris, 808 P.2d at 455-59. Neither issue is appropriatehere andAlexander has cited no other authority to supporthis argument. Here, there were no statements made by thevictimwhich the State introduced through thecounselor and the counselor did not testify as to the credibility of the victim. Expert testimony is permissible to explain the existence of medical or psychological conditions associated with abuse. In Statev. Scott (1993),257 Mont. 454,465,850 P.2d 286, 292-93, we said:Expert testimony relating to the contradictory behavior



# .

# . . of a child victim of sexual abuse,will be allowed to enlightenthe jury on a subject withwhichmost people have no common experience and to assist the jurors in assessing the credibility of thevictim. We conclude the testimony given by Piersall in this case is the sort of testimonyreferred to in Scott which pertains to explaining the behavior of the victim and which is intended to assist the jurors in assessing the credibility of the victim. Scott also discussed the testimony of a counselor relating to the credibility of the child victim; this sort of testimony was not used in this

case as Piersall did not testify as to the victim's credibility. His testimonywas informative to the jurors on the nature of post traumatic stress disorder and did not impinge on the jury'sdetermination of credibility of the victim. We hold the District Court erredby admitting the testimony of Brad Custer to establish where the offenses occurred and that such

error was harmless. We further hold that none of the other testimony challenged by Alexander constituted improper hearsay testimony.

Did the District Court err in refusing to continue the sentencing to allow the inclusion of a sex offender evaluation in the Pre-Sentence Investigation? On June 28, 1992, the District Court ordered an evaluationby

a psychologist "for purposes of ascertaining [Alexander's] amenabilityto treatment inan outpatientprogram." Theevaluation

was tobe provided to the District Court aspart of thepresentence investigation. The court ordered that the sex offender evaluation be conducted by Northwest Family Recovery, licensed clinical psychologists. The court further ordered that copies of the evaluationbe included inthepresentence investigationpursuant to § 46-18-111. MCA. When that evaluation was not completed by the time scheduled for the sentencing hearing, the District Court refused to continue thehearingand sentencedthedefendantwithout the benefit of the sex offender evaluation and recommendation. During the sentencing hearing conducted on August 5, 1993, counsel for Alexander advised the court that Andy Hudak of Northwest FamilyRecoverywasworking on the evaluation but that it would not be completed for at least another month. He requested that the sentencing hearing be continued until the evaluation had 14been completedand consideredby the court. Theprosecutoradvised the court that she too had spoken with Hudak and that Hudak had told her that persons such as Alexander who maintain their innocence about the sexual behavior at issue are generally not amenable to treatment in his outpatient program. The District Court acknowledged its own familiarity with such programs, noted the continued denial of the defendant and denied the motion to continue the sentencing hearing. Alexander contends that the District Court erred by refusing to continue the sentencing hearing and by sentencing him without considering Hudak's report. He argues that this violated the presentence investigation requirements set forth in § 46-18-111, MCA

# . Section 46-18-111, MCA (1991), applies to Alexander's sentencing and provides in pertinent part: 46-18-111. Presentence investigation 

# -- when required. (1) Upon 

# . . .a verdict or finding of guilty to one or more felony offenses, the district court shall direct the probation officer to make a presentence investigation and report. 

# .. . The investigation

### must include an evaluation of the defendant and a recommendation as to treatment by a person qualified under guidelines established by the department of corrections and human services. 

# . , 

# . (Emphasis supplied.) Section 46-18-111(1), MCA, was amended by the 1993 Legislatureand now specifically addresses perpetrators of sexual crimes involving victims under the age of sixteen years. The legislature amended subsection (1) to include a mandate for an evaluation and a recommendationas totreatment inthe leastrestrictiveenvironment in light of community safety and offender needs. Although Alexander argues that the amended statute is more applicable tothis case and should apply, that statute took effect on October 1, 1993, after Alexander's sentencing. However, the statute as previously written also requires an evaluation and recommendation

as to treatment in this case. Nonetheless, the State argues that because the District Court considered placement in a less restrictive environment than the Montana State Prisonand recognized Alexander's rights to continue to claimhis innocence,Alexanderwas not prejudiced by sentencing without the evaluation. The express wording of the 1991 statute, however, requires that the District Court "shall direct the probation officer tomake apresentence evaluation and reportwand that the "investigation include an evaluation of thedefendant and a recommendation as to treatment" by a qualified person. Sentencing decisions made by a district court are generally discretionary as trial judges are granted broad discretion to determine the appropriate punishment. 

## a, e.s.,State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. However, the appropriate standardof reviewhere as to this issue iswhether the District Court's interpretation of the law is correct. State v. Strong (1993), 258 Mont. 48, 49, 851 P.2d 415, 416. In this case, the District Court sentenced the defendant before the presentence investigation was completed. The trial court's discretion to determine the appropriate punishment in such

a case cannot be exercised until and unless the statute concerning presentence investigationshasbeen correctlyapplied. We conclude that the DistrictCourt did not have thediscretion to sentence thedefendant in this case without considering a complete presentence investigationcontainingtheevaluationandrecommendation required by § 46-18-111(1), MCA. After Alexander's sentencing, Hudak completed Alexander's ~menityEvaluation (for purposes of amenability for outpatient therapy) and the evaluation is now part of the record and can be included in the presentence investigation. Thus, on remand, the District Court will have 

### a complete presentence investigation to consider in light of our decision in this case. We hold the District Court erred in refusing to continue the sentencing in order to allow the inclusion of a sex offender evaluation in the Pre-Sentence Investigation. Affirmed in part, reversed in part and remanded for resentencins consistentwith this opinion. n

We Concur:

chief-~ustice l7