No. 86-72 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKENNETH LAIRD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial Di.strict, 

In and for the County of Yellowstone, 

The Honorable Diane G. Rarz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox, Billings, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

Harold F. Hanser, County Attorney, ~illings, 

Montana; Donna Heffington, Deputy County Attorney 

Submitted on Briefs: Dec. 11, 1986 

Decided: February 9, 1987 

Filed: FEB9- EWlf 

a *,u 4 

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Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant Kenneth Laird appeals his conviction for 

sexual intercourse without consent following a jury trial in 

the Thirteenth Judicial District in and for the County of 

Yellowstone. We affirm his conviction. 

Three issues are raised on appeal: 

1. Whether the District Court erred in denying 

defendant's request to cross examine the State's witnesses on 

an alleged prior assault made against the victim. 

2. Whether the District Court erred in admitting the 

testimony of the state's expert witness on the probability of 

sexual assault upon the victim. 

3. Whether the District Court erred in admitting as 

evidence "pornographic" materials found in defendant's 

apartment. 

In March 1985, nine year old Katherine lived with her 

mother Melissa and two younger sisters in an upstairs room at 

the Acme Hotel in downtown Billings. The defendant lived 

with his common law wife a floor beneath them in room No. 15. 

Defendant and Melissa had known each other on Billings' south 

side for several months before Melissa moved her family to 

the Acme. Defendant moved to the Acme a month or so after 

Melissa's family. Defendant and Melissa were friends, so in 

the months between defendant's move and the early part of 

March, defendant visited Melissa several times a week to 

drink coffee and talk. Melissa's children were often present 

during these visits. 

On Friday, March 8, Katherine was on her way home from 

school when, as she started up the stairs to her apartment, 

she saw defendant in the hallway. He coaxed her near to him 
by offering her candy, then grabbed her by the hand, pulled 

her into his room, and locked the chain lock on the door. 

Defendant's wife was not there. Defendant then undressed 

Katherine and raped her orally, vaginally and rectally. 

Katherine testified that defendant showed her "dirty" 

magazines before raping her, telling her that he was going to 

do to her what the naked people in the magazines were doing. 

When he finished raping Katherine, defendant told her that if 

she told on him, he would do it again. 

Katherine did not tell anyone what happened for several 

days. In that period her mother noticed that her daughter 

had trouble sleeping, was scratching her vaginal area and 

made frequent trips to the bathroom. Around 1:30 on Sunday 

morning, March 10, Katherine, who was sleeping near her 

mother, (who was watching a late movie on t.v.), woke crying. 

When her mother asked her what was wrong, Katherine continued 

crying and insisted that if she told, her mother wouldn't 

love her anymore. Melissa, aware that something was wrong, 

asked Katherine if someone had hurt her, and learned that 

Katherine had been assaulted. In her rage, Melissa went down 

to defendant's apartment, broke through his door and attacked 

him with a kitchen knife. She was arrested and taken to jail 

until March 15. She did not spend any time alone with her 

children until that time. 

At about 11 a.m. the morning of March 10, a Billings 

police officer took the defendant's stat.ement at the Billings 

Deaconess Hospital. At that time defendant maintained that 

an unknown lady had attacked him with a knife, and that 

although she may have lived in the building, he did not know 

who she was. In another statement to police on March 12, 

defendant admitted. knowing Melissa and her family, but denied 

any close familiarity with them. He stated that he believed 
Melissa made up the sexual assault story to cover for her 

attack on him. 

Sometime after the assault defendant moved from 

apartment 15, where Katherine was raped, to a new apartment 

in the building, apartment 29. On March 14, defendant 

consented to a search of his new apartment. The detective 

explained that the purpose of the search was to find 

pornography relating to defendant's sexual assault on 

Katherine. Seven maga,zines were confiscated. At trial 

defendant admitted that the magazines confiscated from 

apartment no. 29 were the same that he had in his earlier 

apartment, number 15. 

Katherine was examined by a doctor, Doctor Patrick Sauer 

on March 13. His conclusion from the examination, as well as 

from Katherine's statements to him, was that he was 99.99 

percent sure that Katherine had been sexually assaulted. Dr. 

Sauer testified that Katherine's hymen was gone and that her 

vaginal opening was twice the size normal for a child of her 

age. He further testified that he found three abrasions 

inside the vaginal opening, each approximately $" in length. 

On April 23, 1985 Social. Worker Susan Kerns of the 

Yellowstone County Resource Department gave her statement to 

the police. She had been the social worker assigned to 

Melissa and her family since August of 1984. Her statement 

contained two pertinent passages to this appeal: 

Q. (by the police) . . . [Hlad you occasion to 

talk to the children or have anything to do with 

the family within a couple of weeks previous [to 

the assault] ? 

A. I saw the family about two weeks earlier. 

Q. And did you notice anything peculiar at that 

time? 

A. [Wlhile I was there I noticed that Katherine 

getting up from taking a nap and scratching herself 

in the vaginal area. 
Q. (by the police) . . . Since (the rape) have 

either of the children mentioned anything new to 

you? 

A. There is a possibility Katherine may have been 

assaulted once by a man who picked her up on the 

street as she was walking home from school. 

Q. Do you recall or do you know when that might 

have been? 

A. No, and I don't know what the man's name was, 

she did not have the name, ah I, just don't know 

how we can track that down. 

Q. Did she, or was she able to describe to what 

extent the assault occurred? 

A. No. 

The first of the three issues concern these comments by 

Ms. Kerns. Defendant maintains that it was error for the 

District Court to prevent defendant from asking Dr. Sauer 

whether a previous assault could be the explanation for the 

physical injuries he used in concluding that she had been 

assaulted. Defendant also argues that the testimony of 

social worker Kerns on Katherine's apparent vaginal 

irritation two weeks before the assault was evidence he 

should have been able to use to mitigate the adverse physical 

evidence against him. The implication was that Katherine's 

irritation was caused by an earlier assault and that 

Katherine was fabricating the charge against defendant. The 

trial court ruled that defense counsel was not allowed to 

examine any State's witness regarding any alleged prior 

assault. We affirm its decision. 

Defense counsel intended to bring the matter up for 

cross examination under § 45-5-511 (4), MCA. Section 

45-5-511, MCA, provides in relevant part: 

(4) No evidence concerning the sexual conduct of 

the victim is admissible in prosecutions under this 

part except: 
(a) evidence of the victim's past sexual conduct 

with the offender; 

(b) evidence of specific instances of the victim's 

sexual activity to show the origin of semen, 

pregnancy, or disease which is at issue in the 

prosecution. 

It is our view that neither of the above quoted 

exceptions pertain to the alleged incident of assault. 

First, this incident was not alleged to have occurred with 

the defendant and, even were it so alleged, would not have 

been exculpatory hecause of the victim's and defendant's 

ages. Second, the alleged assault hardly constituted a 

specific instance of the victim's sexual activity. The 

defendant admittedly knew very little about the speculated 

earlier assault. The record does not even indicate if the 

incid.ent was sexual in nature. Ms. Kern's statement that 

there was a "possibility" of assault, without further 

explanation, was an inadequate offer of proof and was 

insufficient to support any cross examination under the 

exceptions of S 45-5-511 (4) (b). 

Defendant also argues that Dr. Sauer's opinion testimony 

on whether there was a rape went to the ultimate issue before 

the Court and was inadmissible evidence of Katherine's 

veracity. Defendant cites the following trial testimony to 

support his contention: 

Q. [Deputy County Attorny) Based on your 

examination of this little girl, did you arrive at 

a diagnosis? 

A. [Dr. Sauerj Based on the information that she 

gave me, based on her physical exam, reviewing all 

the information, I feel the diagnosis is that she 

was sexually assaulted. 

Q. All right. Is that the diagnosis that you 

placed on your report? 

A. It is on the dictated report, my final 

impression says "Possible sexual assault." I think 
you need to understand that this is, and especially 

in these kinds of circumstances where I feel it is 

important to put down what the child tells to you 

as soon as possible, and I am still waiting for 

further tests, I will put "possible" until I have 

reviewed it in my mind and made my final diagnosis. 

Q. Based upon the evidence you had before you at 

that time, how likely do you feel it was that the 

child had been sexually assaulted? 

A. 99.99 percent. 

Defendant invites this Court to conclude that when an 

expert testifies about his findings, the expert is in fact 

commenting on the weight and credibility of the evidence 

given by the victim. We do not accept the defendant's 

invitation. It is clear that Dr. Sauer was not testifying 

about Katherine's veracity. Instead, Dr. Sauer was asked to 

give his diagnosis of Katherine based upon his experience as 

a pediatric specialist. The physician can testify as to his 

clinical impression and give an opinion based upon his 

experience and first hand observation. State v. Dickens 

(1982), 198 Mont. 482, 647 P.2d 338. Dr. Sauer said he was 

99.99 percent certain Katherine had been sexually assaulted. 

He did not say he was certain she was telling the truth. He 

also did not make any conclusions regarding the ultimate 

issue, i.e., whether the defendant raped Katherine. For the 

above reasons, defendant's assertion that the District Court 

erred in admitting Dr. Sauer's testimony on the probability 

of sexual assault is unsupported in law. 

The final issue raised by the defendant is whether the 

District Court erred in admitting as evidence the magazines 

found in his apartment. Defendant argues that the magazines 

were inadmissible first because of lack of foundation and 

second because the probative value of the evidence was 

outweighed by its prejudicial effect. 
Defendant argues that no evidence or testimony was 

presented establishing that the magazines taken from his 

second apartment were similar to or were the actual magazines 

shown to Katherine. Defendant maintains that magazines were 

admitted for the sole purpose of prejudicing the jury. 

The introduction of evidence at trial is controlled by 

several statutory provisions. A threshold inquiry is whether 

the evidence is relevant. Rule 401, M.R.Evid. provides: 

Relevant evidence means evidence having any 

tendency to make the existence of any fact that is 

of consequence to the determination of the action 

more probable or less probable than it would be 

without the evidence. Relevant evidence may 

include evidence bearing upon the credibility of a 

witness or a hearsay declarant. 

The magazines were relevant because they tended to 

buttress Katherine's credibility. She had told investigators 

that she was shown "dirty" magazines and such magazines were 

found in the search of defendant's room. 

The defendant contends that the evidence was unfairly 

prejudicial, citing Rule 403, M.R.Evid: 

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. 

The defendant asserts that physical presentation of the 

magazines at trial was unnecessary. He maintains that the 

State did not need to admit the magazines as evidence to 

establish that the magazines were confiscated from his 

apartment and that the evidence bolstered Katherine's 

testimony. In defendant's view, the magazines were 

unnecessary evidence admitted solely for prejudicial 

purposes. 
The established rule of law is that a district court's 

weighing of potential prejudice against probative value will 

be upheld absent an abuse of discretion, State v. Austad. 

(1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. We find no 

abuse of discretion by the trial court in finding that the 

probative value of the magazines outweighed potential 

prejudice to the defendant. The magazines were necessary to 

corroborate Katherine's testimony. It was within the trial 

court's discretion to rule on their admission as physical 

evidence. 

Defendant also questions the sufficiency of the 

foundation supporting the admission of the magazines. 

Defendant asserts that although Katherine testified she had 

been shown magazines, she never testified at trial that the 

magazines in evidence were those magazines defendant showed 

her. 

Once again this matter is within the trial court's 

discretion. The trial court's determination of the adequacy 

of foundation should not be overturned unless there is a 

clear abuse of discretion. State v. Armstrong (1980), 37 

St.Rep. 1563, 1579, 616 P.2d 341, 355. In the instant case, 

defendant admitted that the magazines presented at trial were 

the same present in apartment 15 on March 8. Given this 

admission it is clear the trial court was justified in 

finding that an adequate foundation had been presented. The 

trial court did not abuse its discretion by allowing the 

magazines into evidence. 

For the reasons stated herein, the findings of fact and 

conclusions of law of the District Court are affirmed. , ,/7 

We Concur: 

Justice 

C/