NO. 93-456 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vPAUL 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Vernay, Kalispell, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Barbara C. 

Harris, ~ssistantAttorneyGenera1, Helena, Montana; 

Thomas J. Esch, Flathead County Attorney, Valerie D. 

Wilson, Deputy, Kalispell, Montana 

Filed: 

Submitted on Briefs: February 17, 1994 

Decided: May 24, 1994 
Justice Fred J. Weber deliversd the Opinion of the Court. 

This is an appeal by defendant Paul A. Alexander from the 

judgment entered in the Eleventh Judicial District Court, Flathead 

County, following a jury conviction of one count of sexual 

intercourse without consent and one count of sexual assault, both 

felonies. We affirm in part 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? 

Paul A. 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 boy was eleven years old at the time Alexander 

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-grandson had begun when 

he was in the first or second grade and had continued until he was 

in the fourth grade. Testimony showed that the victim was alone 

with his step-grandfather almost on a daily basis, that they shared 

a "special relationshipw and spent a good deal of time together. 

The victim was often alone in the house with Alexander while his 

2 
mother, 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 

subsequently reported to the police. Alexander was 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, on June 16, 1993, Alexander filed a Motion 

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, Alexander moved the court for a 

mistrial based on the following four points: (1) in opening 

statements, the State violated the Order in limine by referring to 
statements 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 victim had 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 that denial of his motion, Alexander again objected 

to statements introduced by Robert Piersall (Piersall), a licensed 

social worker in private practice in Kalispell, 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 guilty verdicts against Alexander 

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 for Evaluation requesting that an evaluation be conducted to 

assess his amenability to outpatient sexual offender treatment. 
The District Court ordered such an evaluation to be completed by 

Northwest Family Recovery in Kalispell and ordered further that it 

be included in the presentence investigation. 

Andy Hudak (Hudak), director of Northwest Family Recovery was 

conducting the sex offender evaluation of Alexander. Hudak had not 

completed the evaluation by August 5, 1993, the date scheduled for 

the Sentencing Hearing. Alexander moved to continue the hearing 

until the evaluation was completed; this motion was denied by the 

District Court. The State presented information at the Sentencing 

Hearing concerning information Hudak had provided tothe prosecutor 

regarding Alexander's amenability to treatment. In spite of the 

fact that the evaluation had not been completed, the District Court 

sentenced Alexanderto thirty years imprisonment and designated him 

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 

5 
statements made by the victims to Brad Custer, Maxine Lamb, Robert 

Piersall and Lauren Langmead, unless and until same are ruled 

allowable by the court pursuant to Rule 801 (d) (1) (B) ." Alexander 

claims that the court then improperly allowed such hearsay 

statements during the trial, beginning with statements made by the 

State during its opening statements. 

Alexander contends that the following statements made by the 

prosecutor during her opening statements to the jury constitute 

reversible error: 

. . . And in Late August of 92, [the victim] began 

approaching his 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 the parents, as any parent 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. 

It wasn't until the 31st of December, New Years eve 

that Maxine finally interviewed [the victim] . . . After 

speaking with [the victim], Maxine then spoke with the 

defendant, and he was interviewed by 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 statements made by the 

named witnesses unless and until it ruled on the statements. The 
statements 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 one made 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 are grounds for reversal because the prosecutor's reference to 

inadmissible evidence in her opening statement contributed to his 

conviction. According to the ruling in West, hearsay evidence 

alluded to in opening statements must be so highly prejudicial that 

it supports a reasonable probability that the statements led to the 

defendant's conviction. West, 617 P.2d at 1300. 

The prosecutor's statements as quoted above do not contain any 

statements made by Brad Custer or Maxine Lamb. They merely detail 

the course of events leading up to Detective Lamb's interview with 

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 is misplaced. 

Alexander also claims certain testimony by witnesses involved 

inadmissible hearsay statements. He first contends that statements 
made by Brad Custer, which we quote in their entirety here, were 

inadmissible hearsay: 

Q. [by Ms. Wilson] And through your investigation, 

were you able to establish where the alleged abused [sic] 

occurred? 

A. [by Brad Custer] Yes, I was. 

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 

foundation and 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 there was never any question of or 

challenge to venue. 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 Flathead 
County 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 error was harmless. Montana follows the United States Supreme 

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: 

[Aln otherwise valid conviction should not be set aside 

if the reviewing court may confidently say, on the whole 

record, that the constitutional error was harmless beyond 

a reasonable doubt. 

Delaware v. Van Arsdall (1986), 475 U.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, in cases of error which 

we regard as harmless, that beyond 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'q denied 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 presented prior to the victim's testimony, it 

did not include any information that was not verified by the victim 

later during the course of the trial. We conclude that this did 

not prejudice Alexander and is harmless error according to Montana 

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 state 
what her son had told her about the sexual abuse and what a friend 

who was a counselor had said to her about sexual abuse. The 

transcript indicates that the victim's mother did indeed attempt to 

make inappropriate statements; however, counsel for defendant 

objected immediately and the District Court sustained the 

objections. Consequently, there was 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 that although some 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 testimony was 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 the victim 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, I have. 

10 
Q. 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 symptoms of distress as a coping device, because the 

more he would become aware of his distress, then the more 

distressed he would actually become. So his tendency was 

to down-play them. Part of my making that diagnosis is 

based on information reported to me 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 [the mother]. 

THE COURT: You are objecting? 

MR. VERNAY: Yes, I am. 

THE COURT: Sustained. 

BY MS. WILSON: 

Q. Can you 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 [the victim] 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 

Alexandertoward him. And as [the victim] was describing 

verbally to me things that he says took place-- 

THE COURT: Wait a minute. Stop. This is hearsay. 

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 than 
speech or in addition to speech, where he 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. Can you give the jurors an 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 [the victim]? 

A. No, they haven'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 State v. Harris (1991), 247 Mont. 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 sexual 
abuse 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 appropriate here and Alexander has cited no other 

authority to support his argument. Here, there were no statements 

made by the victim which the State introduced through the counselor 

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 

State v. 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 enlighten the jury on a subject with which most people 

have no common experience and to assist the jurors in 

assessing the credibility of the victim. 

We conclude the testimony given by Piersall in this case is the 

sort of testimony referred 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 testimony was informative to the jurors on the nature of post 

traumatic stress disorder and did not impinge on the jury's 
determination of credibility of the victim. 

We hold the District Court erred by 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 evaluation by 

a psychologist "for purposes of ascertaining [Alexander's] 

amenability to treatment in an outpatient program." The evaluation 

was to be provided to the District Court as part of the presentence 

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 

evaluation be included in the presentence investigation pursuant 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 the hearing and sentencedthe defendant without 

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 Family Recovery was working 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 

14 
been completed and considered by the court. The prosecutor advised 

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 Legislature and 

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 

recommendation as to treatment in the least restrictive environment 

in light of community safety and offender needs. Although 

Alexander argues that the amended statute is more applicable to 
this 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 Prison and recognized Alexander's rights to continue 

to claim his innocence, Alexander was 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 to make a presentence evaluation and reportw and 

that the "investigation include an evaluation of the defendant 

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 standard of review here as to this issue is whether 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 investigations has been correctly applied. We conclude 

that the District Court did not have the discretion to sentence the 
defendant in this case without considering a complete presentence 

investigation containingthe evaluation and recommendation required 

by § 46-18-111(1), MCA. 

After Alexander's sentencing, Hudak completed Alexander's 

~menity Evaluation (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 consistent with this opinion. n 

We Concur: 

chief-~ustice l7