No. 13896 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMERRILL CAMPBELL, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant: 

J. Brian Tierney, Butte, Montana -.,, - - 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath argued, Assistant Attorney General, Helena, 

Montana 

John G. Winston, County Attorney, Butte, Montana 

Submitted: A~ril 28. 1978 

Decided : jbn - %, 1978 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

Defendant appeals from the judgment of conviction 

entered by the District Court, Silver Bow County, after a 

jury found him guilty of aggravated assault. 

On November 16, 1976, Tom McKenzie, a welfare worker 

with the Department of Social and Rehabilitation Services 

of the State of Montana, went to the Head Start Program in 

Butte to follow up a report of child abuse. McKenzie spoke 

with Pat Sullivan, Head Start Director, and observed Gina Houser, 

a four year old girl who had been beaten. That same day, November 

16, 1976, McKenzie took Gina Houser to Dr. Dennis McCarthy, who 

examined the child and concluded that her injuries had been 

inflicted by another. 

The child's natural mother, Cheryl Houser Campbell, 

contacted the Head Start School at 2:00 p.m. on November 16, 

1976, to ascertain why Gina had not returned on the school bus. 

The school advised the mother the welfare department had taken 

custody of Gina and three other children of Cheryl Houser Campbell. 

The mother told the welfare department that Gina had fallen from 

her tricycle. The welfare department, however, advised Cheryl 

Houser Campbell that ~ina's bruises were not caused by a fall, 

and directed the mother to the Silver Bow County attorney. 

At 3:00 p.m., November 16, 1976, Cheryl Houser Campbell 

went to the county attorney and stated that Gene Houser, her exhusband, had beaten Gina. Later that evening four of Cheryl 

Houser campbell's daughters, Gina and Rhonda Houser, and Janet 

and Kathy Campbell, were placed in foster care by Tom McKenzie. 
On the evening of the placement of the children in foster 

care, Tom McKenzie spoke by long distance telephone with Gene 

Houser. McKenzie verified that Gene Houser was in Los Angeles, 

California, on the day of the beating and thus could not have 

beaten the girls. 

The next day, November 17, 1976, Cheryl Houser Campbell 

was charged in justice court with giving false information to a 

police officer and endangering the welfare of her children 

by her failure to seek medical aid for them. The mother was 

placed in jail. She then told authorities that defendant, Merrill 

Campbell, had spanked the children on November 15, 1976, with a bed 

slat. The charges against the mother were later dropped and 

on December 6, 1976, the State filed an Information charging 

defendant with the aggravated assault of Krista Flanigan, Cheryl 

Houser Campbell's fifth daughter, and Gina Houser on November 15, 

1976. 

The four minor children, including Gina, were immediately 

placed by the welfare department in the custody of Cheryl Houser 

Campbell. Krista Flanigan, age six, was placed in a Deer Lodge 

Montana, foster home and talked to her mother by telephone only 

once during the six months prior to defendant's trial. Krista 

identified defendant as the person who had beaten the girls with 

a wooden plunger handle, During the investigation Krista picked 

the handle from among three sticks the deputy county attorney 

showed her. 

At his arraignment, defendant moved the court to order that 

defendant be allowed to submit to a polygraph test, No arrangements were made for a polygraph test, however. 
Defendant's trial commenced on April 20, 1977. During 

the state's case, a wooden plunger handle was admitted as an 

exhibit, over defendant's objection. Also over defendant's 

objection, the court allowed two Head Start workers and a police 

officer to testify to statements made by four year old Gina Houser. 

At the close of the state's case, defendant moved the 

court to dismiss the Information or in the alternative, to 

direct a verdict for defendant on the grounds that the state's 

evidence was insufficient as a matter of law and upon the grounds 

that certain witnesses' testimony was prejudicial to defendant. 

The motion was denied, the jury returned a verdict of guilty and 

the district judge sentenced defendant to five years in the state 

prison. 

Defendant raises seven issues in his appeal from the 

District Court judgment: 

1. Did the court err in failing to order a polygraph 

test after defendant had requested one? 

2. Is the evidence sufficient to support the verdict? 

3. Did the court err in admitting the wooden plunger 

handle into evidence? 

4. Did the court err in allowing three witnesses to testify 

to statements made by four year old Gina Houser? 

5. Did the court err in limiting the testimony of a defense 

witness? 

6. Did the state create reversible error when it asked 

a rebuttal witness for defendant's general reputation in the 

community? 

7. Did the state improperly introduce evidence of other 

crimes committed by defendant? 
The district judge committed reversible error when he 

allowed the two Head Start teachers and the police officer to 

testify, over defendant's objection, to statements made by four 

year old Gina Houser to the teachers. The alleged statement 

of Gina that defendant had beaten her and her sister with a 

wooden plunger handle went to the very facts which the state 

was trying to prove, was a statement offered to prove the truth 

of the matter asserted and was therefore hearsay. The State 

concedes that the statement was not admissible within the res 

gestae rule because the statement, made at least 24 hours after 

the beating, " * * * was not made contemporaneously with the act 

complained of nor does it appear to have been made in a state 

of excitement or shock. * * * Narratives of a past transaction 

do not come within the res gestae rule." State v. Shambo, (1958), 

133 Mont. 305, 309, 310, 322 P.2d 657. 

It is possible that Gina Houser, although only four years 

old at the time of trial, was competent to testify. Section 

93-701-3(2), R.C.M. 1947, the statute in effect at the time of 

defendant's April 20, 1977, trial, excluded from the general rule 

that all persons are qualified to testify: 

"Children under ten years of age who appear incapable 

of receiving just impressions of the facts respecting 

which they are examined, or of relating them truly." 

A four year old witness is not necessarily too young to perceive 

correct impressions of the facts he observed, to remember those 

impressions, to communicate what he saw, and to understand his 

duty to tell the truth. Other courts have held that children four 

years old or younger were competent to testify. Love v. State, 

(1974), 64 Wisc.2d 432, 219 N.W.2d 294, 298; Fields v. State, 

(Tex.Crim.App. 1973), 500 S.W.2d 500, 502; Hill v. Skinner, (1947), 

81Ohio App. 375, 79 N.E.2d 787, 789. The question of whether 
the child is competent to testify is a matter addressed to 

the sound discretion of the trial judge. State v. Shambo, supra. 

In this case, if Gina Houser had been qualified as a 

witness, had testified that defendant had beaten her and her 

sister, and then had her credibility impeached by defense 

suggestions that since the beating she had been improperly 

influenced, the state might well rehabilitate her by introducing 

the alleged statements to the Head Start workers as prior consistent statements. Allen v. Moore, (1975), 167 Mont. 330, 

338, 538 P.2d 1352. Gina, however, was not a witness, nor was 

she even present at the trial. The testimony concerning Gina's 

statements was not offered to corroborate the testimony of 

Gina, who was never a witness, but was introduced by the state 

to corroborate the testimony of six year old Krista Flanigan. 

The testimony as to Gina's statements corroborated and 

strengthened Krista Flanigan's testimony and was so damaging 

to defendant's case that we are not convinced of the state's 

contention that the admission of the testimony was harmless. 

Upon remand, the District Judge shall examine the child's 

competency to testify as it relates to the time of the new trial, 

and not to the time when the crime occurred nor to the time of 

the previous trial. State v. Gamer, (1977), 116 Ariz. 443, 

569 P.2d 1341, 1344. The child may testify if the judge correctly 

determines her to be competent. If the judge rules that Gina is 

not competent to testify, testimony concerning statements she 

made to others implicating defendant in the crime are also inadmissible. Coleman v. Higgins, (1960), 137 Mont. 222, 226, 351 

P.2d 901. 
Although this cause is reversed and remanded on the basis 

of this issue alone, we shall discuss two other issues raised by 

defendant for the purposes of retrial. The District Court did 

not err in failing to order that defendant be given a polygraph 

test. Defendant urges that Montana should adopt the rule set 

forth in State v. Stanislawski, (1974), 62 Wis- 2d 730, 216 N.W. 

2d 8, wherein the Wisconsin Supreme Court set forth criteria for 

admissibility of polygraph evidence. 

The Montana rule is that the results of polygraph examinations are not admissible as evidence in a criminal trial. State 

v. Hollywood, (1960), 138 Mont. 561, 358 P.2d 437; State v. Cor, 

(1964), 144 Mont. 323, 396 P.2d 86. We save the issue of whether 

this Court shall adopt a Stanislawski or similar test for 

admissibility of polygraph testimony for a case in which the 

admission or exclusion of polygraph evidence determines the 

outcome of the case. We do note, however, that defendant could 

not satisfy the Stanislawski test. The Stanislawski case merely 

establishes that the use of the polygraph is clearly within 

prosecutorial discretion; that the test requires a prior written 

stipulation by all parties, including the prosecution, and that, 

notwithstanding the stipulation, admissibility of the test results 

is subject to the sound discretion of the trial court. Because 

neither the prosecution nor the district court concurred in the 

admission of polygraph evidence, the Stanislawski test was not met. 

Nor did the court err in admitting the wooden plunger 

handle into evidence. Physical evidence may be introduced and 

received into evidence after proof is made connecting it with 

the accused or the crime. State v. Best, (1972), 161Mont. 20, 

25, 503 P.2d 997. Krista Flanigan testified that she and her 

sister were beaten by defendant and that the plunger handle was 
the weapon defendant used in the beating. Officer Miller 

testified that he had found the plunger handle under the 

children's bed, had placed his initial on the handle and had 

stored the handle in the county attorney's office. The officer 

testified the handle was in the same condition at trial, as it 

was on the day he received it. Defendant asserts that, because 

Cheryl Houser Campbell emphatically asserted that a bed slat 

and not a plunger handle was the weapon used in the beating, 

the plunger handle should not have been admitted into evidence. 

Because the state presented sufficient evidence connecting the 

weapon with the crime and establishing the chain of custody, 

the contrary testimony of Cheryl Houser Campbell went only to 

weight and not to admissibility. 

The judgment of the District Court is reversed and this 

cause is remanded for a new trial. 

Austice 

We Concur: 

-, 

Chief Justice