No. 89-158 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 2 4 

KEVIN NEWMAN, - -1 

- 

- - 

Defendant and Appellant. (- ., 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Antonia P. Marra; Bell & Marra, Great Falls, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Elizabeth L. 

Griffing, Assistant Attorney General, Helena, 

Montana 

Ted 0. Lympus, Flathead County Attorney, Kalispell, 

Montana 

Filed: 

Submitted on Briefs: February 25, 1990 

Decided: April 9, 1990 
Justice Diane G. Barz delivered the Opinion of the Court. 

Kevin Newman appeals his conviction of sexual assault, 5 45- 

5-502, MCA, and sexual intercourse without consent, 5 45-5-503, 

MCA, in the District Court for the Eleventh Judicial District, 

Flathead County. We affirm. 

The charges against defendant stem from allegations made by 

J.G., the seven-year-old daughter of his girlfriend. The precise 

nature of the relationship between defendant and J.G.'s mother 

(mother) and her children is unclear. The defendant stayed at 

mother's residence on a sporadic basis. Defendant and mother also 

had an infant child, C.G. J.G. and her brother, B.G., age eight, 

were required to obey defendant and were disciplined by him, but 

were never encouraged to think of him as a father figure. The 

children's father (father) had remarried. J.G. told her stepmother 

that defendant forced her to watch pornographic movies with him. 

During a telephone call to her stepmother, J.G. asked to come stay 

at her father ' s house. Prior to this incident, father and 

stepmother had considered instituting an action to modify 

residential custody of the children. Both father and stepmother 

testified as to their concern about the children's living 

conditions, including defendant's presence in mother's home. 

The day after J.G. Is phone call, father and stepmother 

contacted Flathead County Sheriff's Department detective Maxine 

Lamb. Father and stepmother related their concerns about the 

children's general welfare, including what they knew of defendant's 
behavior toward J.G. Lamb recommended they contact Ann Anderson, 

a social worker for the Montana Department of Family Services. 

Anderson interviewed both J.G. and B.G. but did not disclose the 

details of the interview to father or stepmother. It was only 

after J.G.'s interview with Lamb that father and stepmother were 

made aware of J.G.'s disclosures regarding defendant's sexual 

contact with her. 

Over the course of several months, during conversations with 

her stepmother, counselors and the prosecutor, J. G. was able to 

relate the details of defendant's assaults upon her. At the trial 

she testified as follows: 

Q. Do you remember telling your stepmother . . . about some movies? 

A. Yes. 

Q. What were the movies that you told her 

about? 

A. They were about bad people with their 

clothes off. 

Q. Boys and girls? 

A. Yes. 

Q. And they didn't have any clothes on? 

A. No. 

Q. What were they doing? 

A. They were, like, doing the same thing 

[defendant] was doing to me. 

Q. What was that? 

A. Well, he put his finger in my private 

part and then he put his penis in my 

butt. 
Q. id you ever see [defendant] touch his 

private part? 

A. Yes. 

Q. What did he do? 

A. He was shaking it up and down. 

Q. With his hand? 

Q. What would happen? 

A. Water would come out most of the time. 

Q. What did the water look like? 

A. It was white. 

Q. What would he do after the water came 

out? 

A. Well, most of the time he would just--he 

would get a towel. 

Q. And do what with the towel. 

A. He would wipe it off. 

Q. Did he ever make you shake his private 

part up and down? 

A. Yes. 

Q. What would happen. 

A. Water would come out. 

Q. Did he ever put his private part anywhere 

else? 

A. In my mouth. 
Q. Can you tell us what you had to do? 

A. I can't remember. I just had to keep it 

in my mouth. 

Q. What did he do when it was in your mouth? 

A. He was moving it up and down. 

Q. When you were watching these movies . . . did it appear like any of the 

people in the movies didn't like what was 

happening to them? 

A. I didn't like what was happening to them. 

Q. When you and [your stepmother] were 

crying and you finally told her about the 

movies, why did you tell her? 

A. Because I wanted him to stop. 

Q. Why did you tell Maxine Lamb about the 

sexual abuse? Why did you tell Maxine 

what he did to you? 

A. Because I wanted him to go to jail, 

because I didn't want him to do it to 

anybody else. 

Q. Who were you thinking about when you were 

concerned [about] him doing it to anybody 

else? 

A. My sister. 

Q. [C.G.]? 

A. (Witness nods head) 

Q. Were you afraid that he might do it to 

her? 

A. (Witness nods head) 

Q. Are you afraid of [defendant]? 

A. (Witness nods head) 
Defendant was charged by information with sexual intercourse 

without consent in violation of 545-5-503, MCA. The District 

Court later granted the State leave to amend the information and 

further charge defendant with sexual assault in violation of 545- 

5-502, MCA. Defendant's pre-trial motions included a request that 

the District Court qualify J.G. as a witness and a motion to 

exclude as hearsay testimony by certain witnesses regarding J.G.'s 

statements concerning defendant's assault upon her. The District 

Court denied the latter motion reserving the opportunity to rule 

on specific testimony at trial. Subsequent to a hearing held 

during the course of trial, the trial court found J.G. competent 

to testify. The jury found defendant guilty of both charges 

against him and the District Court imposed two twenty year 

sentences, both with ten years suspended and to be served 

concurrently. 

Defendant raises four issues on appeal: 

1) Did the District Court erroneously permit the State to 

rebut testimony given by defendant on cross-examination? 

2) Did the District Court err in finding the seven-year-old 

victim competent to testify? 

3) Did testimony given by various witnesses fall within a 

statutory exception to the hearsay rule prohibiting the same? 

4) Did improper remarks made by the prosecution prejudice 

defendant thus preventing a fair trial? 

Defendant first contends the District Court erred in 

permitting the State to rebut defendant's testimony elicited on 

6 
cross-examination. Defendant testified on cross-exam that he was 

a normal heterosexual male with no interest in anal sex, child 

pornography or sexual contact with children. Over objection, 

defendant's ex-wife testified on rebuttal that during the course 

of their marriage he had encouraged her to engage in anal sex with 

him and that she had seen him become sexually aroused by a 

pornographic movie depicting a father having sex with his preteenage daughter. Defendant contends this was testimony of 

specific conduct inadmissable pursuant to Rules 608 and 404 (b) , 

M.R.Evid. Furthermore, defendant argues the State failed to give 

notice of character testimony as required by State v. Just (1979), 

184 Mont. 262, 602 P.2d 957. Defendant concludes the erroneous 

admission of this testimony warrants reversal. 

The State correctly observes that counsel for defendant did 

not object to these questions and defendant thus put his 

credibility at issue by his testimony. The facts of this case are 

analogous to State v. Norris (1984), 212 Mont. 427, 689 P.2d 243. 

Norris was charged with two counts of sexual intercourse without 

consent stemming from an incident involving a teenage babysitter. 

Norris, 689 P.2d at 244. Norris allegedly assaulted the young 

woman after luring her to his motel room with the promise of a 

babysitting job then inducing her to consume alcohol. Norris, 689 

P.2d at 244. 

In response to the prosecution's question on cross-exam, Lynn 

Norris testified her husband had never coaxed women to enter into 

prostitution. Norris, 689 P.2d at 246. The District Court 
properly allowed rebuttal testimony by Norrisls cellmate from a 

previous incarceration as to statements made by Norris regarding 

his practice of encouraging women to consume illegal drugs and 

then forcing them into prostitution. Norris, 689 P.2d at 245. In 

that case, as in this, the State properly presented testimony 

rebutting statements made by a witness. Furthermore, I1[t]he Just 

substantive requirements for admissability of 'other crimes or 

acts1 evidence do not apply to rebuttal evidence offered under 

Rule 404 (a) (1) .I1 State v. Anderson (1984), 211 Mont. 272, 292, 

686 P.2d 193, 204. We hold the District Court properly admitted 

the ex-wife's testimony as rebuttal of defendant's statements on 

cross-examination. 

Defendant's second specification of error concerns the lower 

court's determination that J.G. was competent to testify. 

Defendant contends that because J.G. did not know where she lived, 

how long she had lived there, specific dates upon which the sexual 

abuse had taken place or even a time frame within which the 

assaults had occurred, she was not competent to testify. 

Rule 601(b), M.R.Evid., provides that: 

A person is disqualified to be a witness if the 

court finds that (1) the witness is incapable of 

expressing himself concerning the matter so as to 

be understood by the judge and jury either directly 

or through interpretation by one who can understand 

him or (2) the witness is incapable of understanding 

the duty of a witness to tell the truth. 

The ~istrict Court in this case questioned J.G. extensively 

regarding her understanding of her obligation to testify 

truthfully. It is within the sound discretion of the District 
Court to ascertain the competency of a witness. State v. Howie 

(1987) , 228 Mont. 497, 503, 744 P. 2d 156, 159. "We have stated 

that what is important is the capacity to remember the occurrence 

and the ability of the witness to relate her impressions of what 

o~curred.'~ State v. Eiler (Mont. 1988), 762 P.2d 210, 213, 45 

St.Rep. 1710, 1713. The child's inability to remember her address 

or specific dates did not render her incapable of testifying as to 

instances of sexual abuse by defendant. Any inconsistencies within 

her testimony or possible fabrication would affect J.G.'s 

credibility not her competency. Eiler, 762 P.2d at 213-14. The 

jury determines the weight given witness testimony in light of that 

person's credibility. Eiler, 762 P.2d at 214. The District Court 

properly found J.G. competent to testify. 

Defendant specifies as error the District Court's admission, 

over objection, of testimony defendant contends was inadmissable 

hearsay. We note that the District Court repeatedly admonished the 

jury that certain statements, particularly those made by J.G. to 

other witnesses concerning defendant's sexual abuse of her, were 

not admitted for the truth of the statement made, but as evidence 

that the statements were made at a certain point in time. The 

first group of statements under contention were descriptions by 

J.G. of the activities in which defendant compelled her to 

participate. J.G.'s stepmother, therapist Carol Lee, Ann Anderson, 

law enforcement officer Maxine Lamb and Dr. Pamela Oehrtman all 

testified that J.G. described to them the sexual abuse defendant 

inflicted upon her. 
Rule 801(c), M.R.Evid., provides that: 

Hearsay is a 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. 

However, pursuant to Rule 801(d)(l), M.R.Evid.: 

A statement is not hearsay if . . . [tlhe 

declarant testifies at the trial or hearing 

and is subject to cross-examination concerning 

the statement, and the statement is . . . consistent with his testimony and is offered 

to rebut an express or implied charge against 

him of subsequent fabrication, improper 

influence or motive. . . 

We hold this group of statements is not hearsay according to Rule 

Our recent holding in State v. Hibbs (Mont. 1989), 780 P.2d 

182, 46 St.Rep. 1705, is analogous to the instant case. The issue 

in Hibbs concerned the admissibility of out-of-court statements 

made by four children regarding the sexual abuse inflicted on them 

by Hibbs. Hibbs, 780 P.2d at 185. We found those statements 

admissible pursuant to Rule 801(d)(l), M.R.Evid., noting that the 

out-of-court statements were introduced into evidence after the 

victims testified, and that the defendant repeatedly attacked the 

credibility of the victims as witnesses. Hibbs, 780 P.2d at 185. 

Similarly, defendant in the case at hand questioned J.G.'s 

credibility by repeatedly referring to her possible motives for 

falsely accusing defendant. 

A linchpin of defendant's defense below and his argument 

before this Court is that the allegations by J.G. were merely one 

element of her father's campaign to gain residential custody of 
J.G. and her brother. Defendant made express references to the 

custody dispute between J.G.'s parents. Defendant also implied 

that J.G.'s gradual recollection and increased ability to relate 

the details of his contact with her were symptomatic of her induced 

fabrication of these allegations. J.G. testified at the trial, 

was subject to cross-examination and her statements to others were 

introduced to counter defendant's charge that J.G. fabricated her 

allegations against him. The District Court properly permitted 

rebuttal of defendant's assault on J.G.'s credibility by admission 

of her prior consistent statements. 

Counsel for defendant further objected to the following 

testimony by father: 

Q. And the concerns that you had in the 

summer of '87 were what? 

A. [B.G.] was pretty much a straight-F 

student. He didn't care. He was real 

hyper and everything. I went to school 

with him once on a parent-teacher's 

conference, and the teacher told me, with 

me there, that it was like-- 

Instead of doing his work, he would lay 

down on the floor and roll around and be 

a complete pest in his class. I was told 

after I went in on the first parentteacher conference that, and I gave some 

advice to [B.G.] on it right there. 

The ~istrict Court allowed this testimony over objection as 

reflective of the witness1 state of mind. As noted above, counsel 

for defendant repeatedly alleged that her father induced J.G. to 

fabricate her charges against defendant so that father and 

stepmother could prevail against mother in an action to modify 
residential custody. Thus, defendant brought into issue father's 

motive for seeking a change in custody. The above testimony 

reveals father's state of mind. As such, father's testimony is 

admissible as an exception to the hearsay rule pursuant to Rule 

Nurse Karen Skonard testified J.G. related the details of 

defendant's assaults upon her. Skonard gave expert testimony 

regarding J.G.'s demeanor as compared with that of a typical 

sexual assault victim. Skonard's diagnosis was based in part upon 

these statements by J.G. and was thus admissable as an exception 

to the rule excluding hearsay pursuant to Rule 803(4), M.R.Evid. 

Defendant further contends Lorraine Pierce's testimony 

regarding mother's statement that defendant would babysit her 

children was inadmissible hearsay. We disagree. 

Mother testified as follows: 

Q. During this period of time, were there 

occasions when you would leave [B.G. ] and 

[J.G.] along [sic] with [defendant]? 

A. When [defendant] was in my home it was 

when he was with the guy that he worked 

with and-- 

Q. Not always, though? 

A. Not always, no. If I ever did leave the 

home, it was just to go to, like, Circle 

K and be right back home, because he 

didn't babysit. He wasn't a babysitter. 

He wasn't my babysitter. 

Q. But he did babysit for you on occasion? 

A. Just if I went to Circle K and back. 

Q. How many times did he babysit for you? 

Do you know? 
A. Not very often, because I took the kids 

wherever I went. I always take the kids 

wherever I go. 

The ~istrict Court admitted over defendant's objection the 

following testimony by mother's neighbor Lorraine Pierce: 

Q. Do you recall at that time a time when 

you were at her house during the summer 

of '87 and the subject of babysitting 

came up? 

Q. In what context did that come up? 

A. I was over there one afternoon and she 

said something about that she was going 

to go play bingo with, I believe, 

[defendant's] sister, . . . And [J.G.] 

came over to me and asked me if she could 

go home with me. 

Q. [J.G. ] asked you? 

A. Yes. She practically was begging . . . [me] to take her home with me. 

Q. Was that something she did often? 

A. She liked to come down to our house. We 

live on a farm, and she liked coming out 

there. But this seemed a little bit more 

than the usual times she would ask to 

come out. 

Q. What did you tell her? 

A. I told her I was busy and I couldn't have 

her out that night. 

Q. What did [mother] have to say at that 

time? 

A. She said that she didn't need a 

babysitter, that [defendant] had offered 

to watch the children that night. 
Q. And what was [J.G.'s] reaction to that? 

A. She looked very terrified. She looked 

like she wanted to start to cry and ran 

into her room and slammed the door. 

Mother's statement to Pierce was clearly inconsistent with 

her testimony at trial that defendant never babysat the children 

for longer than the few moments it took her to run to the corner 

store. The District Court properly admitted Lorraine Pierce's 

testimony of mother's prior inconsistent statement pursuant to 

Rule 801(d) (I), M.R.Evid. 

Defendant's final specification of error concerns statements 

made by the prosecutor and a State witness which defendant argues 

constitute substantial prejudice requiring reversal of his 

conviction. Defendant maintains Maxine Lamb's response on crossexam to the following questions prejudiced him in the eyes of the 

jury: 

Q. Now, did you take any steps to safeguard 

the fact that [J.G.] may have been 

creating this story? What steps do you 

normally take when you interview 

somebody? 

A. Are you asking about the investigative 

procedure? 

Q. Right. 

A. Certainly. I felt in this case, Pat, 

that in my opinion, it warranted getting 

a warrant for the arrest of [defendant] 

for these charges, particularly after the 

interview, after the affect, the 

indicators from [J.G.]. And then running 

a criminal history on [defendant], seeing 

the violence in his background. 

The District Court sustained counsel for defendant's objection to 
Lamb's testimony as being non-responsive and inappropriate. 

Defendant maintains such testimony caused him substantial 

prejudice. However, mother previously testified without objection 

to one incident of domestic violence admitted by defendant and to 

which the police responded. 

Defendant further contends the prosecutor's interjection in 

the following exchange prejudiced him: 

Q. [By defense counsel] So when did you 

claim that [defendant] was watching this 

movie, child pornography? 

A. I can't tell you the exact date. It was 

when we were married. 

Q. Ten years ago? 

A. No. Probably mid-marriage. 

Q. Where did this movie come from? 

A. It came from a video store, I think one 

of the sex shops. 

Q. Didn't you know that these movies, you 

cannot get them locally? 

[THE STATE 'S COUNSEL] : Your Honor, I am not 

too sure that is true. 

THE COURT: I am not sure that is true, either. 

"It has long been the law of this state that prejudice in a 

criminal case will not be presumed, but must appear from the denial 

or invasion of a substantial right from which the law imputes 

prejudice.'' State v. Miller (Mont. 1988), 757 P.2d 1275, 1281, 45 

St.Rep. 790, 796-97. Defendant in this case failed to demonstrate 

denial or invasion of a substantial right. The jury had sufficient 

evidence upon which to determine defendant's guilt. We find no 
reasonable possibility 

defendant's conviction. 

673 P.2d 1262, 1266. 

Affirmed. 

that these comments contributed to 

State v. Gray (1983), 207 Mont. 261, 268, 

Chief Justice