No. 84-525 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsA. D. M., 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McGrath, County Attorney, Helena, Montana 

Submitted on Briefs: April 11, 1985 

Decided: June 25, 1985 

/- I I 

;+, 9g-d 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court 

Defendant appea 1s from a conviction of felony sexua 1 

assault pursuant to section 45-5-502, MCA, following a jury 

trial in the First Judicial District, Lewis and Clark County, 

on May 16, 1984. We affirm. 

School officials notified the authorities on October 

24, 1983, that defendant was alleged to have committed sexual 

assault upon his five-year-old daughter. Rita Pickering, a 

social worker from the welfare department, removed the child 

from school on October 26 in order to interview her. 

Pickering and a sheriff's department detective conducted and 

recorded an interview of the child and as a result she was 

removed from defendant's home and placed in foster care. 

In the interview, the child described how her father 

had forced her to play with his "winker dinker;" she used 

anatomically correct dolls to demonstrate how she was forced 

to masturbate defendant and perform oral sex; she described 

the color, taste and smell of ejaculate; she told Pickering 

that the defendant had touched her, sucked her "boobies" and 

gotten on top of her and put his penis inside her; she used 

the dolls to demonstrate how her father had "humped" her; she 

said that she "bleeded" after these activities; and she 

described a videotape her father made of these activities. 

The defendant was arrested on February 1, 1984 and 

charged with sexually assaulting his daughter on a number of 

occasions over the period of a year, with the last assault 

occurring October 25, 1983. He pled not guilty and a jury 

trial was held on May 14, 15 and 16, 1984. 

At trial, the State produced the child's testimony 

through a videotape taken at her foster home. Rita Pickering 
and the foster mother testified that the child's earlier 

statements and interviews were consistent with the videotaped 

testimony. A clinical psychologist who had examined the 

child testified the description of sexual activity was beyond 

that which she would be able to fantasize; her terminology 

was consistent with that of a five or six year old; and it 

would be very unlikely that she could have picked up such 

information from watching pornography or other people engaged 

in sexual relations. 

The defendant offered testimony that his opportunity to 

engage in these activities was rare because of the presence 

of other adults in the house and his absence from home. He 

testified that the terms the child used came from family 

friends and that the child may have seen some sexually 

explicit videotapes he owned. 

The issues presented on appeal are: 

(1) Was the victim's uncorroborated testimony, due to 

her age, sufficient to convict defendant? 

(2) Was the evidence insufficient as a whole to 

convict defendant? 

The defendant contends that when a child of this age 

testifies after undergoing therapy and counseling, her 

testimony should be corroborated. He points out that the 

information from the child became less reliable due to the 

length of time between the offenses and her testimony and 

because she was required to recount the events in counseling 

and on other occasions. In Montana, a victim's testimony 

does not require corroboration in a sexual assault case. 

State v. Just (1979), 184 Mont. 262, 270-1, 602 P.2d 957, 

962; State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 

453, 458. On at least two prior occasions, this Court has 
found four-year old sexual assault victims competent to 

testify. In State v. Rogers (Mont. 1984), 692 P.2d 2, 41 

St.Rep. 2131, the child's testimony was consistent with 

earlier statements to others except for details as to dates 

and times. In another recent case, State v. D.B.S. (Mont. 

19851, P.2d , 42 St.Rep. 770, the four-year old's 

testimony was corroborated by only one other witness, the 

child's mother. Here, the victim's testimony was consistent 

with her prior reports and supported by the psychologist's 

testimony. She was competent to testify. Defendant' s 

arguments also go to the weight or credibility of the 

testimony. The jury had all the evidence before it and found 

the child's testimony credible. We hold, in accordance with 

prior Montana law, that the victim's testimony in a sexual 

assault case does not require corroboration. 

The defendant also argues that the evidence was 

insufficient as a whole to support the jury's verdict of 

guilty of felony sexual assault. The test for determining if 

substantial evidence supports a conviction is whether, after 

viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. 

State v. Rodriguiz (Mont. 1981), 628 P.2d 280, 283, 38 

St.Rep. 578F, 5781; and Jackson v. Virginia (1979), 443 U.S. 

307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Even if the evidence is 

weak and in conflict with other evidence, it may still be 

substantial enough to support a verdict. State v. Hall 

(Mont. 1983), 662 P.2d 1306, 1308, 40 St.Rep. 621, 624. 

Section 45-5-502(l), MCA on sexual assault provides: 

"A person who knowingly subjects another not his spouse to 

any sexual contact without consent commits the offense of 
sexual assault." Sexual contact is defined as "any touching 

of the sexual or other intimate parts of the person of 

another for the purpose of arousing or gratifying the sexual 

desire of either party." Section 45-2-101(60), MCA. 

The victim testified extensively by videotape about her 

sexual activities with defendant. She provided details about 

the surrounding circumstances and her testimony was 

consistent with earlier interviews. The psychologist 

testified that she was capable of providing reliable 

information; that her description of sexual activities far 

exceeded that which could be expected from someone who had 

not engaged in those activities; and that her description 

used terminology consistent with that of a five or 

six-year-old child. Although the videotape of these sexual 

activities alleged to have been made was never found, 

testimony at trial indicated defendant had at least one 

hour's notice before the sheriff's deputies arrived with a 

s~arch warrant and the deputies found a video camera, tape 

player and tapes on the premises. 

We hold that the jury's verdict was supported by 

substantial evidence and we will not overturn the conviction 

on appeal. 

__-- We concur: