No 

No. 97-640

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 94

294 Mont. 225

980 P.2d 3

STATE OF MONTANA,

Plaintiff and Respondent, 

v.

BLAIN SOUTHERN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District,

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In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr., Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Montana; Mike 

McGrath, Lewis and Clark County Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena, 

Montana

Submitted on Briefs: October 1, 1998

Decided: May 11, 1999

Filed:

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__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. A jury in the District Court for the First Judicial District, Lewis and Clark 

County, convicted Defendant Blain Southern (Southern) of two counts of kidnaping, 

one count of burglary, one count of theft, and five counts of sexual intercourse 

without consent. The District Court sentenced Southern to a substantial term of 

years in prison and ordered that Southern be ineligible for parole. Southern appeals 

his convictions. We affirm.

¶2. We address the following issues on appeal:

¶3. 1. Did the District Court err in denying Southern's motion to sever the counts 

against him into four separate trials?

¶4. 2. Did the District Court err in denying Southern's motion in limine to preclude 

the State from offering microscopic hair comparison evidence at trial?

¶5. 3. Did the District Court err in admitting DNA evidence which came from a rape 

kit which a nurse sealed and then opened to double check her paperwork?

¶6. 4. Was the evidence sufficient to support Southern's convictions on Counts II 

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through VIII?

Procedural Background

¶7. On March 5, 1997, the State charged Southern by Amended Information with 

two counts of kidnaping, one count of burglary, one count of theft, and five counts of 

sexual intercourse without consent. The Amended Information alleged that, on four 

occasions from April 25, 1994, to June 10, 1996, Southern raped four older women in 

the Helena area. The Amended Information also alleged that Southern kidnaped two 

of the victims and burglarized and stole money from another victim.

¶8. On March 7, 1997, Southern filed a motion to sever the nine counts in the 

Amended Information pursuant to § 46-13-211, MCA, based on there being four 

different victims and claimed lack of similarity of the alleged crimes. Southern 

asserted that joinder of the counts for trial was not proper under § 46-11-404, MCA, 

and that he would be unfairly prejudiced if he was tried on all nine counts at one 

trial. On April 16, 1997, the District Court denied Southern's motion to sever.

¶9. Southern filed a motion in limine on March 14, 1997, to prohibit the State from 

introducing microscopic hair comparison evidence. Southern argued that 

microscopic hair comparison evidence was inadmissible under Rules 702 and 403, M.

R.Evid. On April 10, 1997, the District Court denied Southern's motion in limine.

¶10. A jury trial was held April 28 through May 2, 1997. The jury found Southern 

guilty on all nine counts charged in the Amended Information.

¶11. On July 11, 1997, the District Court sentenced Southern to imprisonment at the 

Montana State Prison (MSP) for a term of one hundred years on each of four of the 

counts of sexual intercourse without consent; to twenty years at the MSP on the 

remaining count of sexual intercourse without consent; to ten years at the MSP on 

each count of kidnaping; to twenty years at the MSP for the count of burglary; and 

to six months at the Lewis and Clark County Jail for the count of theft. The court 

ordered that all sentences run consecutively and that Southern be ineligible for 

parole. Southern appeals his convictions. To the extent necessary, we will discuss the 

facts of Southern's crimes as part of our analysis of the issues.

Issue 1.

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¶12. Did the District Court err in denying Southern's motion to sever the counts against 

him into four separate trials?

¶13. The District Court ruled that Southern would not be prejudiced if tried on all 

nine counts together, and thus denied Southern's motion to sever the counts into four 

separate trials based on there being four different victims and claimed lack of 

similarity of the alleged crimes. Southern contends that the District Court erred in 

not considering whether the counts were properly joined in the Amended 

Information. Southern asserts that the counts were misjoined and, therefore, that the 

court erred in denying his motion to sever the counts in the Amended Information 

into four separate trials. In the alternative, Southern asserts that the court erred in 

denying his motion because severing the counts into four separate trials was 

necessary to prevent unfair prejudice. The State, however, maintains that the counts 

were properly joined and that Southern failed to prove that the prejudice was so 

great that it prevented a fair trial. We agree with the State.

¶14. A criminal defendant seeking to sever counts into separate trials has the burden 

of proving either that the counts were misjoined under § 46-11-404(1), MCA, or, if 

joinder was proper, that severing the counts under § 46-13-211(1), MCA, is necessary 

to prevent unfair prejudice. See State v. Richards (1995), 274 Mont. 180, 186, 906 

P.2d 222, 226 (stating that, in issues regarding joinder and severance of criminal 

charges, this Court first determines whether joinder of the charges was proper and 

then determines whether severance of the charges was necessary to prevent prejudice 

to the defendant). See also State v. Martin (1996), 279 Mont. 185, 192, 926 P.2d 1380, 

1384 (citing State v. Slice (1988), 231 Mont. 448, 451, 753 P.2d 1309, 1311) (stating 

that a criminal defendant moving for severance pursuant to § 46-13-211(1), MCA, 

has the burden of proving that the joinder of the charges is prejudicial). 

A.

¶15. Was joinder of the counts in the Amended Information proper pursuant to § 46-11-

404(1), MCA?

¶16. Southern argues that the counts of sexual intercourse without consent were 

misjoined in the Amended Information because they were not sufficiently similar to 

each other. Consequently, Southern contends that the District Court should have 

severed the counts and conducted four separate trials on the charges as to each 

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victim. The State, however, contends that the counts of sexual intercourse without 

consent were sufficiently similar to each other and, therefore, that they were 

properly joined in the Amended Information.

¶17. Determining whether charges were properly joined in a charging document is a 

question of law which we review de novo. See United States v. VonWillie (9th Cir. 

1995), 59 F.3d 922, 929 (citing United States v. Vasquez-Velasco (9th Cir. 1994), 15 

F.3d 833, 843) (interpreting Rule 8(a), Fed.R.Crim.P.).

¶18. Section 46-11-404(1), MCA, provides in pertinent part:

Two or more offenses . . . may be charged in the same charging document in a separate 

count, . . . if the offenses charged, whether felonies or misdemeanors or both, are of the 

same or similar character or are based on the same transactions connected together or 

constituting parts of a common scheme or plan.(Emphasis added.) Two or more offenses 

do not need to be identical to be joined in an information pursuant to this statute; rather, 

the offenses need only be sufficiently similar. Cf. State v. Whitlow (1997), 285 Mont. 430, 

438, 949 P.2d 239, 244 (citing State v. Weldy (1995), 273 Mont. 68, 74, 902 P.2d 1, 5) 

(stating that under the Modified Just Rule, which governs the admissibility of other 

crimes, wrongs or acts in a criminal trial, that the other crimes, wrongs or acts need not be 

identical to the charged conduct to be admissible, only sufficiently similar). 

¶19. Although not determinative, some factors which are relevant to whether charges 

in an information are "of the same or similar character" are: (1) whether the charges 

are brought under the same statute; (2) whether the charges involve similar victims, 

locations, or modes of operation; (3) whether the charged conduct occurred in a 

narrow time frame; and (4) whether the charged conduct occurred in a limited 

geographical area. See United States v. Edgar (1st Cir. 1996), 82 F.3d 499, 503 (citing 

United States v. Taylor (1st Cir. 1995), 54 F.3d 967, 973) (interpreting Rule 8(a), Fed.

R.Crim.P., which is substantively identical to § 46-11-404(1), MCA); United States v. 

Acker (4th Cir. 1995), 52 F.3d 509, 514 (citing United States v. DeBordez (8th Cir. 

1984), 741 F.2d 182, cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 707) 

(stating that, under Rule 8(a), Fed.R.Crim.P., offenses may be joined when they are 

"identical or strikingly similar in the method of operation and occur over a short 

period of time"); and United States v. Chambers (1st Cir. 1992), 964 F.2d 1250, 1251 

(stating that the charged offenses were sufficiently similar for joinder under Rule 8

(a), Fed.R.Crim.P., in part, because they all occurred in the greater Boston area). 

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¶20. In the instant case, Southern differentiates the counts of sexual intercourse 

without consent by pointing out that each victim was raped at a different hour of the 

day. Southern also differentiates the modus operandi of the counts of sexual 

intercourse without consent by pointing out that a knife was used on three of the 

victims but not on the remaining victim. Southern finally points out that, although 

three of the victims were raped in their home, one victim was kidnaped and raped at 

a location west of Helena and that one of the victims who was raped in her home was 

subsequently taken to a location west of Helena and raped a second time.

¶21. Despite these differences, the charges in the Amended Information were 

sufficiently similar to be joined in the Amended Information pursuant to § 46-11-404

(1), MCA. The State brought each charge of sexual intercourse without consent 

under § 45-5-503, MCA. The victims are all older women. They were raped in the 

same limited geographical area-- either in their homes in Helena, at a rural location 

west of Helena or both. The perpetrator covered each victim's face with an article of 

clothing and demanded money from each victim. Each victim was raped within a 

relatively narrow time frame--two and one-half years (April 25, 1994 to November 2, 

1996). Finally, each victim described the perpetrator as a white male with short 

brown or dark hair. Thus, on the whole, the modus operandi and victims of the rapes 

were similar. We conclude that the five counts of sexual intercourse without consent 

were of the same or similar character and were therefore properly joined in the 

Amended Information pursuant to § 46-11-404(1), MCA. 

¶22. Southern also maintains that the two counts of kidnaping are not of the same or 

similar character and, therefore, that they were misjoined. Along these same lines, 

Southern argues that the charges of burglary and theft were misjoined because they 

were not of the same or similar character to the other charges in the Amended 

Information. 

¶23. However, counts may be joined in an information pursuant to § 46-11-404(1), 

MCA, not only if the offenses are of the same or similar character, but also if the 

offenses "constitut[e] parts of a common scheme or plan." A common scheme is a 

"series of acts or omissions motivated by a purpose to accomplish a single criminal 

objective or by a common purpose or plan that results in the repeated commission of 

the same offense or that affects the same person or the same persons or the property 

of the same person or persons." Section 45-2-101(7), MCA. Thus, joining two charges 

is proper in cases in which one charge precipitates the second charge and in cases in 

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which the charges are logically linked by motive and where overlapping proof must 

be offered. Richards, 274 Mont. at 187, 906 P.2d at 226 (citing State v. Bingman

(1987), 229 Mont. 101, 109, 745 P.2d 342, 347 and State v. Baker (1989), 237 Mont. 

140, 144, 773 P.2d 1194, 1197).

¶24. Here, Southern concedes in his brief that there would be overlapping proof 

regarding the kidnaping, burglary, and theft charges and the accompanying charges 

of sexual intercourse without consent. Thus, the counts of kidnaping, burglary, and 

theft were properly joined with the accompanying counts of sexual intercourse 

without consent in the Amended Information because overlapping proof would have 

been offered to prove the crimes. See Richards, 274 Mont. at 187, 906 P.2d at 226 

(citation omitted). Moreover, even if Southern had not conceded this point, the 

kidnaping, burglary, and theft charges were properly joined in the Amended 

Information pursuant to § 46-11-404(1), MCA, because they were each part of a 

"series of acts . . . motivated by a purpose to accomplish a single criminal objective" 

and, therefore, parts of a common scheme. Section 45-2-101(7), MCA. Thus, the 

counts of kidnaping, burglary, and theft were properly joined with the 

accompanying charges of sexual intercourse without consent in the Amended 

Information pursuant to § 46-11-404(1), MCA.

¶25. In sum, the five counts of sexual intercourse without consent were properly 

joined in the Amended Information pursuant to § 46-11-404(1), MCA, because they 

were of the same or similar character. The two counts of kidnaping, count of 

burglary, and count of theft were properly joined in the Amended Information 

pursuant to § 46-11-404(1), MCA, because they were part of a common scheme and 

because overlapping proof would have been required regarding these charges and 

the accompanying charges of sexual intercourse without consent. Accordingly, even 

though the District Court did not directly address this issue, we hold that all nine 

counts in the Amended Information were properly joined.

B.

¶26. Was severing the counts necessary to prevent unfair prejudice to Southern?

¶27. Southern argues that severing the counts by victim (resulting in four separate 

trials) was necessary to prevent unfair prejudice. The State, in contrast, argues that 

Southern did not meet his burden of proving that the prejudice was so great that he 

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was denied a fair trial.

¶28. Section 46-13-211(1), MCA, provides in pertinent part:

If it appears that a defendant . . . is prejudiced by a joinder of charges . . . in an . . . 

information, . . . the court may order separate trials, . . . or provide whatever other relief 

justice requires. This statute requires trial courts to balance the possibility of prejudice to a 

criminal defendant against the judicial economy resulting from a joint trial. Martin, 279 

Mont. at 191, 926 P.2d at 1384 (citing Richards, 274 Mont. at 188, 906 P.2d 222, 226-27). 

This balancing is within the trial court's discretion; thus, we will not substitute our 

judgment for that of the trial court unless the trial court abused its discretion. Martin, 279 

Mont. at 191, 926 P.2d at 1384 (citing Richards, 906 P.2d at 227).

¶29. It is not sufficient for a criminal defendant to prove that he will face some 

prejudice as a result of a joint trial or that he stands a better chance of acquittal if 

separate trials are held. Martin, 279 Mont. at 192, 926 P.2d at 1384 (citing Richards, 

906 P.2d at 227). Rather, a criminal defendant must prove that the prejudice is so 

great as to prevent a fair trial. Martin, 279 Mont. at 192, 926 P.2d at 1384-85 (citing 

Richards, 906 P.2d at 227).

¶30. Three types of prejudice may result from consolidating charges. Martin, 279 

Mont. at 192, 926 P.2d at 1385 (citing Richards, 906 P.2d at 227). First, a jury may 

consider the criminal defendant facing multiple charges a "bad man" and 

accumulate evidence until it finds the defendant guilty of something. Second, a jury 

may use proof of guilt on one count to convict the defendant of a second count even 

though that proof would be inadmissible at a separate trial on the second count. 

Third, the defendant may be prejudiced if he or she wishes to testify on one charge 

but not on another. Martin, 279 Mont. at 192, 926 P.2d at 1385 (citing Richards, 906 

P.2d at 227). See also State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 514-

15 (citations omitted). 

1. Accumulation of Evidence

¶31. Southern argues that the DNA evidence on one count of sexual intercourse 

without consent (Count IX), which showed that DNA from one victim's vaginal swab 

matched Southern's genetic profile to a high degree of certainty, caused the jury to 

decide that he was a bad person and, consequently, to convict him of the other counts 

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even though there was no DNA match on those counts. 

¶32. Whatever the cumulative effect of this evidence was on the multiple charges, 

however, we conclude that it was tenuous, at best, and, by itself, insufficient to 

warrant severance. See Martin, 279 Mont. at 192, 926 P.2d at 1385. Moreover, as is 

discussed in greater detail in Issue 4, there was sufficient evidence for a rational jury 

to find that Southern committed each offense charged in the Amended Information. 

Consequently, we hold that the prejudice which arose from the cumulative evidence 

at Southern's trial was not so great that it prevented a fair trial.

2. Use of Inadmissible Evidence

¶33. Southern claims that he was unfairly prejudiced because the joint trial caused 

the jury to use evidence of guilt on some counts to convict him of other counts even 

though the evidence which the jury considered would have been inadmissible at a 

separate trial on the other counts. More specifically, Southern argues that the 

evidence relating to each victim would have been inadmissible at trials relating to the 

other victims under Rule 404(b), M.R.Evid., and our decision in State v. Matt (1991), 

249 Mont. 136, 814 P.2d 52. The State, however, asserts that, even if there had been 

four trials, the evidence of the crimes committed against the other victims would 

have been admissible in each trial.

¶34. In Matt, we modified the requirements for admitting evidence of other crimes, 

wrongs or acts that we had set out in State v. Just (1979), 184 Mont. 262, 602 P.2d 

957. Based on Rules 403 and 404(b), M.R.Evid., we established the following criteria 

to determine the admissibility of other crimes, wrongs or acts: 

(1) The other crimes, wrongs or acts must be similar;

(2) The other crimes, wrongs or acts must not be too remote in time;

(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character 

of a person in order to show that they acted in conformity with such character; but may be 

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident;

(4) Although relevant, evidence may be excluded if its probative value is substantially 

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outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the 

jury, considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence.

Matt, 249 Mont. at 142, 814 P.2d at 56. These criteria have come to be known as the Modified Just Rule.(1)

¶35. Southern concedes that the evidence of the other crimes was not too remote in 

time to be admissible and that it was admissible under the third part of the Modified 

Just Rule. Nevertheless, Southern asserts that the evidence of the other crimes would 

have been inadmissible at separate trials because the other crimes were not similar 

and because the danger of unfair prejudice substantially outweighed the probative 

value of the other crimes evidence. We will address these issues in turn.

¶36. Southern first argues that the other crimes were not similar and, therefore, that 

the evidence of other crimes would not have been admissible at separate trials. 

However, as we stated in Issue I. A., although the crimes against each victim were not 

identical, they were sufficiently similar to be joined in the Amended Information 

pursuant to § 46-11-404(1), MCA. Likewise, and for the same reasons which we 

outlined in Issue I. A., the four incidents at issue in the instant case are sufficiently 

similar to satisfy the first part of the Modified Just Rule, and thus would have been 

admissible at separate trials on this basis.

¶37. Southern next argues that the prejudicial effect of the other crimes evidence 

substantially outweighed its probative value. Therefore, Southern claims that the 

evidence of other crimes would not have been admissible in separate trials. 

¶38. It is inevitable that evidence of other crimes, wrongs or acts will have some 

prejudicial effect on a criminal defendant. State v. Whitlow (1997), 285 Mont. 430, 

439, 949 P.2d 239, 245 (citing State v. Brooks (1993), 857 P.2d 734, 737). 

Consequently, relevant evidence will be inadmissible under the fourth part of the 

Modified Just Rule only when "its probity is substantially outweighed by the danger 

of unfair prejudice." Martin, 279 Mont. at 195-96, 926 P.2d at 1387 (citing Matt, 814 

P.2d at 56).

¶39. The prejudicial effect of relevant evidence will substantially outweigh the 

probative value of the evidence when the evidence will prompt the jury to decide the 

case on an improper basis. State v. Heuther (1997), 284 Mont. 259, 265, 943 P.2d 

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1291, 1295 (citation omitted). Thus, evidence is inadmissable under the fourth part of 

the Modified Just Rule if it arouses the jury's sympathy for one side without regard 

to its probative value, if it confuses or misleads the jury, or if it distracts the jury 

from the main issues in the case. Huether, 284 Mont. at 265, 943 P.2d at 1295 

(citation omitted).

¶40. In the instant case, although the evidence of the other crimes would have been 

prejudicial to Southern, it was not the type of evidence which would arouse the jury's 

sympathy nor would it have confused, misled, or distracted the jury from the main 

issues in the case. Thus, we hold that its probative value was not substantially 

outweighed by the danger of unfair prejudice.

¶41. Moreover, prejudice arising from use of inadmissible evidence will not be found 

where the evidence is simple and distinct. Martin, 279 Mont. at 193, 926 P.2d at 1385 

(citing Richards, 906 P.2d at 227). The policy underlying this rule is that there is no 

reason to assume the jury will be confused and cannot keep the relevant evidence 

separate when the charges are few and the evidence straight forward. Martin, 279 

Mont. at 193, 926 P.2d at 1385 (citing State v. Campbell (1980), 615 P.2d 190, 199). 

¶42. Here, although the State charged Southern with nine counts, the evidence 

pertaining to each count was simple, distinct and straight forward. There were four 

discrete victims, specific crimes committed against each victim, and the evidence 

clearly applied only to the specific crimes committed against each victim. Thus, after 

reviewing the record, we conclude that there is nothing that suggests that the jury 

could not (and did not) keep the relevant evidence separate. Moreover, the District 

Court instructed the jury that each charged count was a distinct offense and that the 

jury was to decide each count separately. Consequently, since the evidence of the 

other crimes, wrongs or acts would have been admissible at separate trials and since 

the evidence was simple and distinct, we hold that Southern did not establish that the 

jury used evidence of guilt on one charge to convict him of other charges on his 

theory that the evidence would have been inadmissible in the trials on the other 

charges.

3. Self-Incrimination

¶43. Since Southern testified on all counts at the trial on this matter, he concedes that 

he was not unfairly prejudiced in this regard. Accordingly, we will not address this 

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type of prejudice.

¶44. In sum, even though Southern may have faced some prejudice as a result of the 

joint trial, he did not prove that the prejudice was so great that it prevented a fair 

trial. Accordingly, we affirm the District Court's order denying Southern's motion to 

sever the counts into four trials pursuant to § 46-13-211(1), MCA.

Issue 2.

¶45. Did the District Court err in denying Southern's motion in limine to preclude the 

State from offering microscopic hair comparison evidence at trial?

¶46. Before the trial, Southern filed a motion in limine to exclude the testimony of 

Alice Ammen (Ammen), a forensic scientist at the Montana State Crime Lab. 

Ammen testified at the trial that she microscopically compared Southern's hair 

sample to hairs from the rape scenes and that the hair from the rape scenes was 

either "similar to" or "consistent with" Southern's hair sample. Southern contends 

that Ammen's testimony was inadmissible under Rule 702, M.R.Evid., because it did 

not satisfy the factors for the reliability of expert testimony which the United States 

Supreme Court set out in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.

S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and which this Court adopted in State v. 

Moore (1994), 268 Mont. 20, 885 P.2d 457. In support of his argument, Southern cites 

Williamson v. Reynolds (E.D.Okl. 1995), 904 F.Supp. 1529 and McGrew v. State (Ind.

App. 1996), 673 N.E.2d 787, wherein the courts ruled that microscopic hair 

comparison testimony was inadmissible under Daubert because it was unreliable.

¶47. The State responds that, in Montana, the Daubert factors only apply to the 

admissibility of novel scientific evidence and, since microscopic hair comparison is 

not novel scientific evidence, that Southern's reliance on the Daubert factors is 

misplaced. Thus, the State concludes that Ammen's testimony was admissible under 

Rule 702, M.R.Evid.

¶48. The admissibility of evidence is left to the discretion of the district court judge. 

State v. Lancione, 1998 MT 84, ¶ 20, 288 Mont. 228, ¶ 20, 956 P.2d 1358, ¶ 20 (citing 

State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263). Thus, this Court 

reviews a district court's evidentiary ruling, including a court's ruling on a motion in 

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limine, to determine whether the court abused its discretion. Lancione, ¶ 20 (citing 

Gollehon, 262 Mont. at 301, 864 P.2d at 1263). See also Hulse v. State, Dept. of Justice,

1998 MT 108, ¶ 15, 289 Mont. 1, ¶ 15, 961 P.2d 75, ¶ 15 (holding that this Court 

reviews a district court's ruling on a motion in limine for abuse of discretion). 

Montana's district courts are "vested with great latitude in ruling on the 

admissibility of expert testimony." Durbin v. Ross (1996), 276 Mont. 463, 477, 916 

P.2d 758, 767 (citing Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296, 

301, 863 P.2d 381, 384 and Jim's Excavating Service v. HKM Assoc. (1994), 265 Mont. 

494, 509, 878 P.2d 248, 257).

¶49. Rule 702, M.R.Evid., which is identical to its federal counterpart, governs the 

admissibility of expert testimony and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify thereto in the form of an 

opinion or otherwise. We have stated that "[t]he test for admissibility of expert testimony 

is whether the matter is sufficiently beyond common experience that the opinion of the 

expert will assist the trier of fact to understand the evidence or to determine a fact in 

issue." Hulse, ¶ 48 (quoting Durbin, 276 Mont. at 469, 916 P.2d at 762). See also Durbin, 

276 Mont. at 477, 916 P.2d at 767 (citing Newville v. State, Dept. of Family Services

(1994), 267 Mont. 237, 257, 883 P.2d 793, 805) (stating that "[e]xpert testimony is 

required in areas not within the range of ordinary training or intelligence."). Hence, in 

determining whether expert testimony is admissible under Rule 702, M.R.Evid., the trial 

court must initially decide whether the subject matter of the testimony is one that requires 

expert testimony. See Durbin, 276 Mont. at 477, 916 P.2d at 767. The trial court must then 

decide whether the particular witness is qualified as an expert to give an opinion in the 

particular area on which he or she proposes to testify. See Durbin, 276 Mont. at 477, 916 

P.2d at 767. Thus, Rule 702, M.R.Evid., "implicitly requires a foundation showing that the 

expert has special training or education and adequate knowledge on which to base an 

opinion." Durbin, 276 Mont. at 477-78, 916 P.2d at 767 (quoting Cottrell, 863 P.2d 381 at 

384).

¶50. In Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594, this 

Court noted that before Rule 702, M.R.Evid., was adopted, courts required a 

foundation showing that the proffered expert testimony involved a field of science 

which had gained "general acceptance" by the relevant scientific community. 

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Barmeyer, 202 Mont. at 193, 657 P.2d at 598 (citing Frye v. United States (D.C. Cir. 

1923), 293 F. 1013). However, this Court pointed out that there was a trend to 

liberalize the admission of expert testimony, that the general acceptance test had 

been eroded, and that neither Rule 702, M.R.Evid., nor the Commission Comments 

to the rule mentioned the general acceptance test. Barmeyer, 202 Mont. at 193, 657 

P.2d at 598 (citation omitted). Therefore, this Court held that the general acceptance 

test was not "in conformity with the spirit of the new rules of evidence." Barmeyer, 

202 Mont. at 193, 657 P.2d at 598. This Court then explained that "it is better to 

admit relevant scientific evidence in the same manner as other expert testimony and 

allow its weight to be attacked by cross-examination and refutation." Barmeyer, 202 

Mont. at 193-94, 657 P.2d at 598 (quoting United States v. Baller (4th Cir. 1975), 519 

F.2d 463, 466, cert. denied 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391). 

¶51. In Daubert, the United States Supreme Court considered the standard for 

admitting expert scientific testimony in a federal trial. The Court ruled that the 

general acceptance test was absent from, and incompatible with, the Federal Rules of 

Evidence. Daubert, 509 U.S. at 589, 113 S.Ct. at 2794. Therefore, the Court held that 

the general acceptance test was not the exclusive test for admitting expert scientific 

testimony in a federal trial. Daubert, 509 U.S. at 589, 113 S.Ct. at 2794. Instead, the 

Supreme Court concluded that Rule 702, Fed.R.Evid., requires a trial court which is 

faced with a proffer of expert scientific testimony to determine whether the expert is 

proposing to testify to (1) scientific knowledge that (2) will assist that trier of fact to 

understand or determine a fact in issue. Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. 

The Court also noted that Rule 702, Fed.R.Evid., requires trial courts to act as a 

gatekeeper and screen potential expert scientific testimony to ensure that it is 

relevant to the case and reliable. Daubert, 509 U.S. at 589-91, 113 S.Ct. at 2795. 

¶52. The Court set forth the following non-determinative factors to guide trial courts 

assessing the reliability of proffered scientific expert testimony: (a) whether the 

theory or technique can be and has been tested; (b) whether the theory or technique 

has been subjected to peer review and publication; (c) whether the theory or 

technique has a known or potential rate of error and whether there are standards 

controlling the technique's operation; and (d) whether the theory or technique has 

been generally accepted or rejected in the particular scientific field. Daubert, 509 U.S. 

at 593-94, 113 S.Ct. at 2796-97. 

¶53. The Court recently expanded Daubert's general holding by concluding that the 

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trial court's gatekeeping obligation under Rule 702, Fed.L.Evid., applies not only to 

testimony based on scientific knowledge but also to testimony based on technical and 

other specialized knowledge. Kumho Tire Co. v. Carmichael (1999), ___ U.S. ___, ___, 

119 S.Ct. 1167, 1175. The Court also concluded that the trial court may consider one 

or more of the factors that Daubert outlined for assessing testimony's reliability. 

Kumbo Tire, ___ U.S. at ___, 119 S.Ct. at 1175. Even so, the Court emphasized that 

the test of reliability is flexible and that Daubert's factors neither necessarily nor 

exclusively apply to all experts or in every case. Kumho Tire, ___ U.S. at ___, 119 S.

Ct. at 1175. 

¶54. In 1994, this Court adopted the factors for determining the reliability of expert 

scientific testimony that the Supreme Court set forth in Daubert and stated that they 

are consistent with our holding in Barmeyer concerning the admission of novel 

scientific evidence. State v. Moore (1994), 268 Mont. 20, 42, 885 P.2d 457, 470-71. In 

Moore, the defendant argued that the district court erred in admitting DNA evidence. 

Although the foundation of the testimony of the State's expert witnesses was 

somewhat shaky, we concluded that the district court did not err in ruling that the 

defendant's objections to the DNA evidence went to the weight of the evidence and 

not to the admissibility of the evidence. Moore, 268 Mont. at 42-43, 885 P.2d at 471. 

¶55. Two years later, in State v. Cline (1996), 275 Mont. 46, 909 P.2d 1171, the 

defendant argued that the district court erred in allowing a FBI fingerprint 

technician to testify as to the age of the defendant's fingerprint which was found on 

an envelope. We pointed out that fingerprint evidence is not novel scientific evidence 

but that the issue before us was whether it was possible to determine the age of a 

fingerprint using magnetic powder. Cline, 275 Mont. at 55, 909 P.2d at 1177. Because 

we considered the fingerprint aging techniques at issue to be novel scientific 

evidence, we applied the Daubert factors to determine whether the technique was 

reliable. Cline, 275 Mont. at 56, 909 P.2d at 1178. Even so, we stated that it is certain 

that "all scientific expert testimony in not subject to the Daubert standard and the 

Daubert test should only be used to determine the admissibility of novel scientific 

evidence." Cline, 275 Mont. at 55, 909 P.2d at 1177.

¶56. Thereafter, in Hulse, the petitioner, who appealed from a district court's 

decision not to reinstate her driving privileges after they were suspended for failing 

to take an alcohol breath test, argued that the results of a Horizontal Gaze 

Nystagmus (HGN) test was inadmissible. The petitioner argued that the HGN test is 

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a scientific test and that the results of a HGN test are therefore inadmissible unless 

the requirements of Daubert are met. She argued that Daubert was not limited to the 

admissibility of "novel" scientific evidence and that Barmeyer and Daubert were 

inconsistent. We disagreed and reaffirmed our holding in Cline that the Daubert

factors for determining the reliability of expert scientific testimony should be used 

only to determine the admissibility of novel scientific evidence. Hulse, ¶ 56 (quoting 

Cline, 275 Mont. at 55, 909 P.2d at 1177). Moreover, we held that Barmeyer should 

not be limited only to novel scientific evidence. "Rather, our statements in Barmeyer

more broadly referenced the entire trend to liberalize the admission of expert 

testimony as it applied to scientific evidence in general." Hulse, ¶ 61. Thus, we 

summarized the law concerning the admissibility of scientific expert testimony in 

Montana by stating that

a trial court, presented with scientific evidence, novel or not, is encouraged to liberally 

construe the rules of evidence so as to admit all relevant expert testimony pursuant to 

Barmeyer. Certainly, if a court is presented with an issue concerning the admissibility of 

novel scientific evidence, as was the case in both Moore and Cline, the court must apply 

the guidelines set forth in Daubert, while adhering to the principle set forth in Barmeyer. 

However, if a court is presented with an issue concerning the admissibility of scientific 

evidence in general, the court must employ a conventional analysis under Rule 702, M.R.

Evid., while again adhering to the principle set forth in Barmeyer.

Hulse, ¶ 63. 

¶57. We then turned to the issue of whether the HGN test is novel scientific evidence. 

We noted that law enforcement has used the HGN test for several decades and that 

other courts throughout the country had determined that the HGN test was not an 

emerging, new, or novel scientific technique. Hulse, ¶ 68 (citations omitted). 

Consequently, we concluded that the HGN test is not novel scientific evidence and, 

therefore, that a district court did not need to apply the Daubert standards to 

determine whether the HGN test was admissible under Rule 702, M.R.Evid. Hulse, ¶ 

69. 

¶58. Even so, since the relationship between alcohol and nystagmus, and the 

underlying principle of the HGN test is beyond the range of ordinary training or 

intelligence, we held that a district court must conduct a conventional Rule 702, M.R.

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Evid. analysis to determine the admissibility of HGN test results while adhering to 

the principle set out in Barmeyer. Hulse ¶ 69. Since the record showed that a 

foundation was laid which showed that the arresting officer was trained to 

administer the HGN test and that the officer administered the HGN test in 

accordance with his training, we held that the officer was qualified to testify as to 

both his administration of the HGN test and his evaluation of the petitioner's 

performance. Hulse, ¶ 72. Notwithstanding, nothing in the record established that 

the officer had either special training, education, or adequate knowledge which 

qualified him as an expert to explain the correlation between alcohol consumption 

and nystagmus, the underlying scientific basis of the HGN test. Hulse, ¶ 72. Thus, we 

concluded that there was insufficient foundation for the admission of evidence 

concerning the HGN test. Hulse, ¶ 72.

¶59. In the instant case, we conclude that microscopic hair comparison is not novel 

scientific evidence. Our research indicates that this Court has considered at least five 

cases since 1978 wherein a witness has testified on microscopic hair comparison.(2)

Moreover, Ammen testified that comparing hair samples with a microscope "has 

been [done] for decades." Therefore, since microscopic hair comparison is not novel 

scientific evidence, the District Court did not err in not considering the Daubert

factors to determine whether Ammen's testimony was admissible. See Hulse, ¶ 69. 

¶60. Nevertheless, a district court faced with a proffer of microscopic hair 

comparison evidence must conduct a conventional Rule 702, M.R.Evid. analysis, and 

thus adhere to the principle set out in Barmeyer, to determine whether the 

microscopic hair comparison evidence is admissible. See Hulse, ¶ 69. That is, a 

district court must determine: (1) whether the subject matter of the testimony is one 

that requires expert testimony and (2) whether the putative expert has either special 

training or education and has adequate knowledge on which to base an opinion. See 

Durbin, 276 Mont. at 477, 916 P.2d at 767. 

¶61. In the case at bar, we hold that microscopic hair comparison, like the HGN test, 

is beyond the range of ordinary training or intelligence. Consequently, microscopic 

hair comparison evidence is a subject on which an expert may testify. See Hulse, ¶ 

69. 

¶62. Having reviewed the record, we also hold that the State established a foundation 

which showed that Ammen was qualified to testify on microscopic hair comparison 

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and that she had adequate knowledge on which to base an opinion. Ammen testified 

at the trial that she had been working with trace evidence (such as hair, fibers, glass, 

and paint) for four and one-half years at the Montana State Crime Lab. She stated 

that she spends about ninety per cent of her time examining trace evidence. Ammen 

also testified that she had taken several training courses at the FBI Academy that 

dealt with trace evidence and that she had taken several other courses on forensic 

microscopy. Ammen testified that she is a member of two forensic scientist groups 

and that she is involved with writing guidelines for trace evidence examination for 

one of the groups. Ammen also stated that she had testified in other cases regarding 

her examinations of trace evidence and that she had been recognized as an expert 

witness in those cases. Ammen also explained how she analyzes hair samples. Finally, 

she stated that she had examined hair samples from the crimes scenes at issue in the 

instant case, from the victims, and from Southern. Accordingly, we conclude that this 

foundation shows that Ammen has special training and education concerning 

microscopic hair analysis and that she had adequate knowledge on which to base an 

opinion in the instant case. 

¶63. In sum, since microscopic hair analysis is not novel scientific evidence, the 

District Court did not err in not applying the Daubert factors to determine whether 

such analysis was reliable. However, since microscopic hair analysis is a subject 

which requires expert testimony and since Ammen has special training and 

education and had adequate knowledge on which to base her opinions, the District 

Court did not err in admitting Ammen's expert testimony regarding microscopic 

hair comparison under Rule 702, M.R.Evid. Accord United States v. Matta-Ballesteros

(9th Cir. 1995), 71 F.3d 754, 766-67 (holding that the defendant's objection to expert 

microscopic hair comparison testimony went to the weight, not the admissibility, of 

the testimony, and therefore that Rule 702, Fed.R.Evid., did not warrant the 

exclusion of such testimony).

¶64. As a final point, the two cases which Southern relies on for the proposition that 

microscopic hair comparison evidence is inadmissible under the Daubert factors have 

been specifically reversed or overruled on that point. Williamson, 904 F.Supp. 1529 

(reversed in part by Williamson v. Ward (10th Cir. 1997), 110 F.3d 1508, 1522-23) and 

McGrew, 673 N.E.2d 787 (overruled in part by McGrew v. State (Ind. 1997), 682 N.

E.2d 1289, 1292). Consequently, those cases are not persuasive authority. 

¶65. Southern also contends that Ammen's testimony was inadmissible under Rule 

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403, M.R.Evid., because its prejudicial effect substantially outweighed its probative 

value. Southern maintains that hair comparison evidence is unfairly prejudicial 

because it is not possible to determine whether hair comes from a particular person. 

Thus, he concludes that the jury may have been misled because the microscopic hair 

comparison evidence did not positively identify him. The State counters Southern's 

argument that Ammen's testimony was inadmissible under Rule 403, M.R.Evid., by 

arguing that positive identification is not the standard for admissibility of 

circumstantial evidence.

¶66. Rule 403, M.R.Evid., provides that, "[a]lthough 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 . . ." Probative evidence is 

often, if not always, prejudicial to a criminal defendant. See Martin, 279 Mont. at 

196, 926 P.2d at 1387. Consequently, mere prejudicial effect does not render evidence 

inadmissible; relevant evidence is inadmissible under Rule 403, M.R.Evid., only 

when its probative value is substantially outweighed by its unfair prejudicial effect. 

¶67. As we noted in Issue I. B., the prejudicial effect of relevant evidence will 

substantially outweigh the probative value of the evidence when the evidence will 

prompt the jury to decide the case on an improper basis (such as sympathy) or will 

confuse, mislead or distract the jury from the main issue in the case. Huether, 284 

Mont. at 265, 943 P.2d at 1295 (citation omitted).

¶68. In the instant case, the District Court did not directly address Southern's 

argument under Rule 403, M.R.Evid. However, after reviewing the record, we 

conclude that the court did not err in admitting Ammen's testimony based on Rule 

403 concerns. Ammen's testimony was probative because it linked Southern to the 

crime scenes and suggested his involvement in the crimes. See State v. Lantis, 1998 

MT 172, ¶ 54, 289 Mont. 480, ¶ 54, 962 P.2d 1169, ¶ 54. Although Ammen's 

testimony was undoubtedly prejudicial to Southern, it could not have prompted the 

jury to decide the case on an improper basis. Moreover, Ammen clearly explained, in 

both direct and cross-examination, that she could not say that the hair from the rape 

scenes came from Southern; she could only say that the hairs from the crime scenes 

were either "similar to" or "consistent with" Southern's hair sample. Thus, 

Ammen's testimony could not have misled or confused the jury nor could it have 

distracted the jury from the main issues in the case. Accordingly, after balancing the 

probative value of Ammen's testimony against the danger of unfair prejudice, 

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confusion of the issues, and misleading the jury, we hold that the admission of this 

evidence did not violate Rule 403, M.R.Evid.

Issue 3.

¶69. Did the District Court err in admitting DNA evidence which came from a rape kit 

which a nurse sealed and then opened to double check her paperwork?

¶70. Jan Yahner (Yahner), a nurse who collected the samples from one of the victims 

for a rape kit, testified at the trial that she placed the samples inside the rape kit and 

then sealed the kit. However, Yahner testified that she then broke the seal to double 

check that she had placed the proper paperwork in the rape kit. The seal on the rape 

kit apparently stated that only the crime lab was to break the seal. Consequently, 

Southern objected to the admission of evidence from the rape kit "just for the simple 

reason that the proper procedures were not followed in this case by [Yahner] 

opening the box." The District Court overruled Southern's objection.

¶71. Southern asserts on appeal that the District Court erred in admitting the DNA 

evidence which came from the rape kit because Yahner tampered with the rape kit 

after she sealed it for the first time. The State argues that there was no evidence 

which shows that Yahner tampered with the samples which she placed inside the 

rape kit when she broke the seals to check her paperwork. As such, the State argues 

that the rape kit evidence was admissible.

¶72. A criminal defendant seeking to exclude evidence on the grounds that the 

evidence was tampered with before the prosecution acquired the evidence has the 

burden of proving that someone altered the evidence. See State v. Evans (1991), 247 

Mont. 218, 228, 806 P.2d 512, 518 (citing State v. Walton (1986), 222 Mont. 340, 343, 

722 P.2d 1145, 1147). See also § 45-2-101(72), MCA (stating that "[t]amper means to 

interfere with something improperly, meddle with it, [or] make unwarranted 

alterations in its existing condition. . . .").

¶73. In the instant case, Yahner testified that she made no changes to the samples 

which she had placed inside the rape kit when she opened the kit to double check her 

paperwork. Southern, however, points to the testimony of Julie Long (Long), a 

forensic scientist at the Montana State Crime Lab, who agreed that opening a rape 

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kit could affect the integrity of the samples inside the kit. 

¶74. Notwithstanding, Long also testified that the integrity of the samples would be 

unaffected if the rape kit was opened only to check the paperwork inside the kit. 

Long explained that the integrity of the samples inside the rape kit would be affected 

only if the person who opened the kit "did something with the samples." Long 

further explained that, "[j]ust opening the box to put papers in would, in and of 

itself, not affect the samples themselves which are inside [the rape kit] and inside 

other boxes inside [the rape kit]." Southern did not introduce any evidence which 

suggests that Yahner, or anyone else, tampered with the samples inside the rape kit. 

Since Southern did not prove that anyone had tampered with the samples inside the 

rape kit, the District Court did not err in admitting the evidence which came from 

the samples inside the rape kit, including the DNA evidence. 

Issue 4.

¶75. Was the evidence sufficient to support Southern's convictions on Counts II 

through VIII?

¶76. Southern asserts that there was not sufficient evidence for the jury to find him 

guilty on Counts II through VIII. Southern maintains that DNA evidence exonerates 

him of one of the counts of sexual intercourse without consent (Count II); that DNA 

evidence and fingerprint evidence exonerates him of two other counts of sexual 

intercourse without consent and one count of kidnaping (Counts III, IV and V, 

respectively); and that, although the evidence when viewed in a light most favorable 

to the prosecution places Southern at the crime scenes of the burglary count, of a 

count of sexual intercourse without consent, and of a theft count (Counts VI, VII and 

VIII, respectively), mere presence at a crime scene is insufficient to find him guilty of 

these crimes and that the evidence was too speculative for the jury to convict him of 

these crimes.

¶77. The State maintains that neither the DNA evidence nor the fingerprint evidence 

excluded Southern as the perpetrator of any of the crimes. The State also maintains 

that even though more than presence at a crime scene is necessary to establish 

criminal liability, the evidence places Southern with the victim at the time when the 

victim was raped and that the only two people at the crime scene at that time was the 

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victim and her attacker. Thus, the State asserts that there was sufficient evidence for 

the jury to convict Southern on Counts II through VIII.

¶78. This Court reviews the sufficiency of the evidence to sustain a guilty verdict in a 

criminal case to determine whether, after viewing the evidence in a light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. State v. Johnson, 1998 MT 289, ¶ 

41, 969 P.2d 925, ¶ 41, 55 St.Rep. 1186, ¶ 41(citing State v. Sattler, 1998 MT 57, ¶ 56, 

956 P.2d 54, ¶ 56, 55 St.Rep. 230, ¶ 56). "It is within the province of the finder of fact 

to weigh the evidence presented and determine the credibility of the witness; in the 

event of conflicting evidence on factual issues, the trier of fact determines which will 

prevail." Johnson, ¶ 41 (quoting Sattler, ¶ 55). Thus, "[w]e review the jury's verdict 

only to determine whether it is supported by sufficient evidence, not to determine 

whether there was evidence to support a different verdict." Johnson, ¶ 41 (quoting 

Sattler, ¶ 60).

A

Sufficiency of the Evidence on Count II

¶79. Although Southern admits that the evidence, when viewed in a light most 

favorable to the State, is sufficient to sustain a guilty verdict on the charge of 

kidnaping (Count I) which occurred on November 2, 1996, he argues that the 

evidence was insufficient to sustain his conviction for sexual intercourse without 

consent against that victim (Count II) because the only evidence that supports the 

conviction was the victim's testimony. In addition, Southern argues that, since this 

victim's vaginal swabs contained only female DNA, the victim's credibility as to 

whether she was raped is suspect. Moreover, Southern claims that Anita Matthews 

(Matthews), a DNA expert, and Jim Streeter (Streeter), a forensic scientist at the 

Montana State Crime Lab, testified that the DNA from this victim excluded 

Southern as a the perpetrator.

¶80. The testimony of one witness is sufficient to establish a fact. Section 26-1-301, 

MCA. See also State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686, cert. 

denied (1997), ___ U.S. ___, 117 S.Ct. 748, 136 L.Ed.2d 686 (citation omitted). Thus, 

despite Southern's argument, the victim's testimony was sufficient to establish that 

Southern raped her. Moreover, the record shows that there was other corroborating 

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evidence, such as Southern's footprints at the crime scene, that, when viewed in a 

light most favorable to the prosecution, could have led a rational trier of fact to find 

Southern guilty beyond a reasonable doubt. 

¶81. In addition, the record shows that neither Matthews nor Streeter testified that 

the DNA evidence from this victim's vaginal swab excluded Southern as the 

perpetrator. Rather, Matthews testified that the DNA which her company tested was 

consistent with the victim's DNA. Matthew's went on to explain that this result did 

not mean that no sexual intercourse occurred; it only meant that there was no 

cellular material foreign to the victim on the vaginal swab that was submitted for 

testing. Matthew's explained that, if sexual intercourse occurred, the assailant either 

left no cellular material or that it was left in an area other than the area from which 

the vaginal swab was taken. Thus, contrary to Southern's claim, Matthews did not 

testify that the DNA evidence from this victim excluded Southern as the assailant. 

Similarly, even though Streeter testified that Southern could be excluded as the 

source of the DNA which was tested, Streeter did not say that Southern could be 

excluded as the assailant. Therefore, the results of the DNA tests did not exclude 

Southern as the assailant. These results only determined that Southern was not the 

source of the DNA which was tested. Finally, even if the DNA evidence had brought 

this victim's credibility into issue, it is the fact finder, in the instant case the jury, 

which determines a witness' credibility; this Court will not set aside a jury's 

credibility determinations on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686 

(citations omitted).

¶82. In sum, having reviewed the record, we hold that there was sufficient evidence 

for a rational trier of fact to find beyond a reasonable doubt that Southern 

committed the offense of sexual intercourse without consent as charged in Count II.

B

Sufficiency of the Evidence on Counts III, IV and V

¶83. Southern next argues that there was insufficient evidence to convict him of the 

one count of kidnaping, and the two counts of sexual intercourse without consent 

(Counts III, IV and V, respectively), which occurred on June 10, 1996. Southern 

contends that DNA evidence and fingerprint evidence excludes him as the assailant. 

Southern also points out some inconsistencies in this victim's testimony and thus, in 

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effect, attacks her credibility. Southern also contends that, although footprints link 

him to the crime scene, this evidence was insufficient to convict him on Counts III, IV 

and V because mere presence at the scene of a crime does not establish guilt.

¶84. The victim of the offenses charged in Counts III, IV and V testified that, after 

her assailant raped her the first time in her house, he blindfolded her, tied her hands 

behind her back, placed her in a car, drove her to her bank and attempted to cash 

some checks which were in her checkbook. Deborah Hewitt (Hewitt), a forensic 

scientist at the Montana State Crime Lab, testified that she found a latent finger 

print on a plastic insert which was inside the victim's checkbook. Nevertheless, 

Hewitt testified that the print did not match either the victim or Southern. Southern 

points this out and, in effect, argues that the fingerprint exonerates him as the 

assailant. Notwithstanding, Hewitt explained that this result did not exonerate 

Southern as the assailant; it only meant that the print that she found was not 

Southern's print. Thus, the fingerprint on the checkbook insert did not exonerate 

Southern. 

¶85. The victim of the offenses charged in Counts III, IV and V also testified that the 

assailant raped her the first time on a comforter which was on her bed. Matthews, 

however, testified that the DNA testing showed that Southern could be excluded as 

the contributor of a semen stain which was found on the comforter. Similarly, 

Streeter testified that the DNA tests showed that Southern could be excluded as the 

person who left the semen stain on the comforter. Southern asserts that this evidence 

exonerates him as this victim's assailant. 

¶86. However, although the DNA testing showed that Southern did not leave the 

semen stain on the comforter, neither Matthews nor Streeter testified that the DNA 

results excluded Southern as the assailant. Rather, Matthews and Streeter stated that 

it was only possible to exclude Southern as the person who left the semen sample on 

the comforter. In sum, despite Southern's argument, neither Matthews nor Streeter's 

testimony excluded him as the assailant. 

¶87. Moreover, Matthews testified that the DNA from the semen stain was consistent 

with the victim's DNA profile and that it was possible that it could have come from 

one of the victim's sons. Matthews also stated that the stain could have been left on 

the comforter years prior to the attack. In addition, the victim testified that her 

grown and married children had stayed in the bedroom when they had come to 

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Helena to visit her. Furthermore, the victim's testimony was consistent with the 

conclusion that the stain on the comforter did not come from the assailant. In fact, 

the victim testified that her assailant had difficulty maintaining an erection and did 

not ejaculate. Thus, this evidence supports the State's hypothesis that the semen stain 

was left by one of the victim's sons. 

¶88. Next, although we agree with Southern that presence at a crime scene is 

insufficient, by itself, to prove criminal liability, see State v. Johnston (1994), 267 

Mont. 474, 481, 885 P.2d 402, 406 (citing State ex rel. Murphy v. McKinnon (1976), 

171 Mont. 120, 125, 556 P.2d 906, 909), the evidence in the instant case not only 

placed Southern at the crime scene but also established that he was the assailant 

when viewed in a light most favorable to the prosecution. Consequently, we reject 

Southern's argument that the evidence only placed him at the crime scene. 

¶89. Finally, as we stated above, this Court will not set aside a jury's credibility 

determinations on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686 (citations 

omitted). Thus, we will not address Southern's argument concerning this victim's 

credibility.

¶90. In sum, having reviewed the record, we hold that there was sufficient evidence 

for a rational trier of fact to find beyond a reasonable doubt that Southern 

committed the offenses of kidnaping and sexual intercourse without consent as 

charged in Counts III, VI and V.

C

Sufficiency of the Evidence on Counts VI, VII and VIII

¶91. Southern contends that there was not sufficient evidence to support his 

convictions for the count of burglary, the count of sexual intercourse without 

consent, and the count of theft (Counts VI, VII and VIII, respectively), which 

occurred on May 18, 1996. Southern maintains that the only evidence that connects 

him to these crimes is circumstantial, and that, although the circumstantial evidence 

places him at the crime scene, it does not establish that he committed the crimes. The 

State counters that the evidence not only placed Southern at the crime scene, but 

placed him there when the only two people present were the assailant and the victim. 

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¶92. Circumstantial evidence alone is sufficient to obtain a conviction. Johnson, ¶ 43 

(citing State v. Lancione, 1998 MT 84, ¶ 37, 956 P.2d 1358, ¶ 37, 55 St.Rep. 344, ¶ 37). 

"Circumstantial evidence must only be of such a quality and quantity as to legally 

justify a jury in determining guilt beyond a reasonable doubt, and all facts and 

circumstances must be considered collectively." Johnson, ¶ 43 (quoting Lancione, ¶ 

37 and State v. Weaver (1981), 195 Mont. 481, 495, 637 P.2d 23, 31). 

¶93. The evidence against Southern included Hewitt's testimony regarding a pair of 

sunglass which the victim knocked off her assailant's face during the attack and 

which were subsequently found on the floor of the victim's bedroom. Hewitt found a 

footprint left on the lens of the sunglasses which she compared to the sole of a pair of 

Southern's shoes. Hewitt determined that the footprint was made by the left sole of 

Southern's shoe to the exclusion of all other shoes. In addition, Ammen testified that 

pubic hairs found on the bed where the rape occurred were consistent with 

Southern's pubic hair sample but inconsistent with the victim's pubic hair sample.

¶94. Notwithstanding, Southern asserts that this evidence only establishes that he 

was at the crime scene. As we stated above, presence at a crime scene is insufficient, 

by itself, to prove criminal liability. Johnston, 267 Mont. at 481, 885 P.2d at 406 

(citation omitted). However, as the State correctly points out, this evidence not only 

placed Southern at the scene but also placed him at the crime scene when the only 

people there were the victim and her attacker. Consequently, we conclude that even 

though the evidence on Counts VI, VII and VII was circumstantial, it was of 

sufficient quality and quantity that a reasonable jury could find Southern guilty of 

the offenses charged beyond a reasonable doubt. Therefore, having reviewed the 

record, we hold that there was sufficient evidence for a rational trier of fact to find 

beyond a reasonable doubt that Southern committed the offenses of burglary, sexual 

intercourse without consent, and theft as charged in Counts VI, VII and VIII.

Conclusion

¶95. In summary, we hold that the District Court did not err in denying Southern's 

motion to sever the counts against him into four separate trials, did not err in 

admitting microscopic hair comparison evidence at trial, did not err in admitting 

DNA evidence from the rape kit which had been opened so that the nurse could 

double check her paperwork, and that there was sufficient evidence for the jury to 

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No 

convict Southern on Counts II through VIII. Therefore, we affirm Southern's 

convictions.

¶96. Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

1. 1 In Matt, we also clarified the procedural protections which Just required. Matt, 249 Mont. at 142-43, 814 

P.2d at 56. These procedural protections, however, are not at issue in the instant case. 

2. 2 See State v. Bromgard (1993), 261 Mont. 291, 293-94, 862 P.2d 1140, 1141; State v. Kordonowy (1991), 251 

Mont. 44, 47, 823 P.2d 854, 856; State v. Coleman (1981), 194 Mont. 428, 447, 633 P.2d 624, 636; State v. 

Higley (1980), 190 Mont. 412, 428, 621 P.2d 1043, 1053; and Coleman v. State (1978), 177 Mont. 1, 26-27, 579 

P.2d 732, 747. See also Gregory G. Sarno, Annotation, Admissibility and Weight, in Criminal 

Case, of Expert or Scientific Evidence Respecting Characteristics and Identification of 

Human Hair, 23 A.L.R.4th 1199 (1983).

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