No. 84-525 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,



### -vsA. D. M., Defendant and Appellant.

APPEAL FROM: DistrictCourt of the FirstJudicial

### District, In and fortheCounty 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 

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ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court

Defendant appea

### 1s from a conviction of felony sexua1 assault pursuant to section 45-5-502, MCA, following a jury trialintheFirstJudicial District, Lewis and ClarkCounty,

on May 16, 1984. 

### We affirm. School officials notified the authorities on October 24, 1983, thatdefendantwas alleged tohave committed sexual assault upon his five-year-old daughter. Rita Pickering, a social worker from thewelfare department, removed thechild 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 todemonstrate how shewas forced tomasturbate 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 hispenis inside her; she used thedollstodemonstrate how her fatherhad "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 assaultinghisdaughter 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 trialwas held on May 14, 

### 15and 16, 1984. At trial, the State produced the child's testimony through a videotape taken ather fosterhome. Rita Pickering

### and the foster mother testified that the child's earlier statementsand interviewswere consistentwith thevideotaped testimony. A 

### clinical psychologist who had examined the childtestifiedthedescriptionof sexual activitywas beyond that which she would be able to fantasize; her terminology

was consistentwith that of a five or sixyear old; and it would be very unlikely that she could have picked up such information from watchingpornography orotherpeople engaged in sexualrelations. The defendant offered testimony thathisopportunityto engage inthese activities was rare because of thepresence of other adults inthe 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 explicitvideotapes he owned. The issuespresented on appeal are: (1) Was the victim's uncorroborated testimony, due to her age, sufficienttoconvict 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 tothe length of 

### time between the offenses and her testimony and because she was required torecount theevents incounseling 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 

### atleast two prior occasions, this Court hasfound 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 toothers except for details as todates 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 alltheevidencebefore 

### it and found the child's testimony credible. We hold, inaccordance with prior Montana law, that the victim's testimony in a sexual assaultcasedoes not require corroboration. The defendant also argues that the evidence was insufficient as a whole to support the jury's verdict of guiltyof felony sexual assault. The 

### test fordetermining if substantial evidence supports a conviction 

### iswhether, 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, 61L.Ed.2d 560. Even iftheevidence 

### 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 orgratifying the sexual desireof eitherparty." Section 45-2-101(60), MCA. 

### The victimtestifiedextensivelyby videotape abouther sexual activitieswithdefendant. Sheprovided detailsabout 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 tapeson thepremises. We 

### hold that the jury's verdict was supported by substantial evidence and 

### we 

### willnot overturn the conviction

on appeal.



## __-- We 

### concur: