No. 90-162 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, plaintiff and Respondent,

KERMIT MEDICINE CLOUD KAO, Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C. B. ~cNeil, Judge presiding.

COUNSEL OF RECORD: For Appellant: Benjamin R. Anciaux, Esq., Polson,Montana For Respondent:

C, (.:I G3 -F 

# - Filed: Hon. Marc Racicot, Attorney General; Jennifer Anders,Assistant Attorney General;Helena,Montana Larry J. Nistler, County Attorney, Polson,Montana

Submitted on Briefs: September 6, 1990 Decided: November 8, 1990

### Chief Justice J. 

### A. Turnage delivered the Opinion of the Court. Kermit Medicine Cloud Kao appeals his felony conviction of incest, followinga jury trial in the Twentieth Judicial District, Lake County. We affirm. Kao raises the following issues: 1. Did the District Court err in allowing hearsay testimony from two witnesses? 2. 

### Did sufficient evidence exist in the record to support a 

### guilty verdict? 3. Did the DistrictCourt improperly allow evidence of Kao's prior crimes,wrongs, or acts? 4. 

### Did theDistrict Court improperlyexclude certainevidence offered by Kao? 5. 

### Did the District Court deny Kao a fair trial under the doctrine of cumulative error? Kermit Medicine Cloud Kao married Frances Medicine Cloud Kao on March 3, 

### 1983. At the time of their marriage, Frances had a 

### five-year-old daughter, 

### E.M. E.M. lived with her natural father, Tim Morris, in Helena,but through the years, shevisited the Kaos in Missoula and later lived with the Kaos in Turtle Lake. While living at the Kao residence in Turtle Lake, elevenyear-old E.M. ran away from home on two separate occasions, once around February 21, 1989 and once on March 11, 1989. Following the first run-away incident, the Lake County Sheriff's Office referred E.M. 

### to the Lake County Department of Family Services 2(DFS). During a counseling session with Linda Noble of DFS, E.M. disclosed that shehad been sexuallyabused by her stepfather,Kao. E.M. also told her mother, Frances, of the abuse incident. LindaNoblepromptlynotified theLakeCountySheriff'sOffice of the abuse incident; the Sheriff'sOffice, in turn, interviewed E.M. In a statement made to Officer Paula Gill on March 6, 1989, E.M. stated thatKao had touchedhervaginal area during Christmas vacation in 1985 when the Kaos lived in Missoula. E.M. was eight years old at that time. Meanwhile, Frances wrote a lettertoKao,whowas then serving a sentence foran unrelated matter inMontana Stateprison. Inher letter, Frances told Kao that E.M. had recently run away fromhome on two occasions and that E.M. was being difficult to manage. Frances, however,did notmention any allegations of sexual abuse. Kao immediately responded to Frances1 concerns in a letter dated March 14, 1989. Kao's letter, in relevant part, stated: Theproblems you arehaving with [E.M.] extend fromme. Shemay have already been messed up, but 

### I did not help matters at all. I turned it into a very sinful deed. It started in Missoula. 

### Itouched her intimatelyand 

### Itold her not to tell. That is why 

### I was so mean with her, to scare her so she wouldn't tell. Then this last time, at Turtle Lake, I knew it was wrong and I tried to ignor [sic] her. I tried really hard, and 

### I almost made it. But 

### I touched her again, just a quick feel,and I knew 

### I was lost. It happened and I really felt dirty. I wanted to tell you, but the fact is 

### I didn't and because 

### I didn't 

### I may have destroyed everything. Poor [E.M.], 

### I am so sorry. Frances, I am sorry! And it comes from my heart. 

### I do still have one.On May 24, 1989, Kaowas chargedby informationwith one count of incest. At his one-day trial on November 20, 1989, Kao testified thathe did not sexually abuse E.M.--he stated otherwise in his letter only to get E.M. removed from Frances1residence so his two natural children, who also reside with Frances, would no longer be exposed to the troubled E.M. E.M. could not testify as she was undergoing inpatient psychiatric therapy at Rivendell Center in Butte at the time of the trial. The jury found Kao guilty of incest as charged. On December 15, 1989, the District Court sentenced Kao to ten years imprisonment for the charge of incest and ten years imprisonment forbeing

apersistent felony offender,both sentencesto run consecutively. The court also ordered Kao to complete the sexual offender treatment program and designated him a dangerous offender for parole purposes. From this conviction,Kao appeals.

1. Did the District Court err in allowing hearsay testimony from two witnesses? The District Court allowed Linda Noble of 

### DFS and Lake County Officer Paula Gill to testify from their personal knowledge regarding 1) E.M. Is unavailability to testify, and, 2) the timeframe of 

### E.M.Is chargesas E.M. stated to them. The DistrictCourt restricted their testimony to these two areas,and stated that any specific details of the alleged crime which E.M. related to Noble and Gill would not be allowed into evidence. Kao argues that their 4testimony, however limited, was still hearsay, and unexcepted by Montana Rule ofEvidence 804(b) (5)because the court failed tomake certain preliminary findings under State v. J.C.E. (1988), 235 Mont. 264, 767 P.2d 309. We see no error in the District Court's ruling, but any possible error is harmless; Kaolsconviction will stand based on his admission in his letter as discussed below.

2. Did sufficient evidence exist in the record to support a guilty verdict? The test for determining sufficiency of the evidence 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." Jacksonv. Virginia (1979),443U.S. 307, 319, 99 S.Ct. 2781, 2789, 61L.Ed.2d 560, 573;restated in Statev. Wilson (Mont.1981), 631 P.2d 1273, 1278-79, State v. Geyman (1986), 224 Mont. 194, 195- 96, 729 P.2d 475, 476, and State v. Gilpin (1988), 232 Mont. 56, 68, 756 P.2d 445, 451. Kao argues that if this Court strikes the testimony of Noble and Gill, then the evidence in the recordwould be insufficient to support a guilty verdict. We disagree. Even if the testimony of Noble and Gill were stricken from the record, Kaolsletter independently establishesthatKao committedthecrime of incest beyond a reasonable doubt.

### Section 45-5-507, MCA, provides, in part, that a person commits the crime of incest when that person knowingly has sexual contact with a stepchild. Section 45-2-lOl(60), MCA, defines sexual contact as: any touching of the sexual or other intimate parts of theperson of 

### another for thepurpose of arousing orgratifyingthe sexual desire of either party. ThisCourthas liberallyconstruedwhat constitutes "touching of the sexual or other intimate parts of the person." See State



### v. Gilpin (1988), 232 Mont. 56, 68-69, 756 P.2d 

### 445, 452 (rubbing buttocks and inner thigh); 

### State 

### v. Howie (1987), 228 Mont. 497, 503, 744 P.2d 156, 159 (rubbing belly and between legs); State

### v. Weese (1980), 189 Mont. 464, 467-68, 616 P.2d 371, 374 (rubbing belly and chest of prepubescent girl). Here, Kao's admission in his letter clearly satisfies the elements of incest: It started in Missoula. 

### I touched her intimately and 

### I told her not to tell. That is why I was so mean with her, to scare her so she wouldn't tell. Then this last time, at Turtle Lake, I knew it was wrong and 

### I tried to ignor [sic]her. I 

### tried really hard, and I 

### almost made it. But 

### I touched her again, just a quick feel, and I knew I was lost. It happened and I really felt dirty. Although Kao, in his letter, excludeswhat part of E.M.'s body he intimately touched,this exclusion does not negate Kaolsadmission that his touching was intimate. This letter alone is sufficientto satisfy, beyond a reasonable doubt, that Kao knowingly had sexual contact with E.M, and thereby is guilty of incest.

3. Did the District Court improperly allow evidence of Kaols prior crimes,wrongs, or acts? Montana Rule of Evidence 404(b) provides, in part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Kao argues that the District Court erred when it allowed into evidence the fact that Kao was in prison in March, 1989, when he wrote the letter to his wife, which stated that he intimately touched E.M. Kao further argues that this "other crimesl1evidence violated thenotice requirementsof Statev. Just (1979),184Mont. 262, 602 P.2d 957. Kaolsimprisonmentwas mentioned by the State three times at trial: during opening statement, during direct examination of Frances, and during closing argument. However, Kaols underlying offense forhis imprisonmentwas nevermentioned. Kaols argument iswithoutmerit,procedurallyand substantively. Procedurally, Kao waived appellate review of this issue because he failed to timely object to the admittance of this fact when itwasmentioned during thevarious times at trial. See 88 46- 20-104 and -701,MCA; Statev. Kills on Top (Mont. 1990), 793 P.2d1273, 1299, 47 St.Rep. 984, 1012; State v. Ungaretti (1989), 239 Mont. 314, 319, 779 P.2d 923, 926. Furthermore, Kaolsargument lacks substantive merit as the fact that Kao was in prison when he wrote the letter was not introduced toprove the character of Kao "in order to show that he acted in conformity therewith" under Montana Rule of Evidence 404(b). Rather, the evidence was submitted during the direct examination of Frances to establish the authenticity of Kaols letter. And the references to Kaols imprisonment during the State's opening and closing statementswere insignificant and did not prejudiceKao in lightof the entire record. We thereforehold that the District Court properly allowed the fact that Kao was in prison when he wrote his letter admitting he intimately touched E.M.

4. Did theDistrict Court improperlyexclude certainevidence offered by Kao? During trial, Kao testified that hewas aware thatTim Morris, E.M.'s natural father,had sexually abused E.M. The State informed the court that any reference to sexual abuse by Morris was prohibited by 

### 5 45-5-511(4), MCA. The District Court thereby orderedKaolstestimony stricken fromthe record and instructed the jury to disregard it. Section 45-5-511(4), MCA, provides:No evidence concerning the sexual conduct of thevictim is admissible inprosecutions under this part except: (a) evidence of the victim's past sexual conduct with the offender; (b) evidence of specific instances of the victim's sexualactivity to show the origin of semen,pregnancy, ordisease which is at issue in the prosecution. Kao argues that this evidence should have been admitted to establish that E.M.'s problems stemmed from additional sources besides Kao. Kaolsargument lacks merit and is a clumsy attempt to reduce his own culpability by casting blame on another. Clearly, § 45-5-511(4), MCA, provides no exception to warrant the admittance of this evidence to establish that another person had sexually abused E.M. Kao further argues that this evidence is admissible under Montana Rule of Evidence 404(a)(2), which allows ll[e]videnceof a pertinent trait of characterof thevictim of the crime offered by

an accused. 

# . . .I1 Kao argues that this evidence establishes that E.M. had the pertinent character trait of accusing others of sexually abusing her. Kaolsassertion is unfounded and runs contrary to the intent of 45-5-511(4), MCA, which prohibits evidence regarding E.M.'s sexual conduct. Lastly, Kao argues that this evidence is admissible under Montana Rule of Evidence 404(b), the "other crimes" exception. Again, Kaolsargument lacks merit as the "other crimes" involved

### allege sexual conduct,which again, is specificallyprohibited by 5 

### 45-5-511(4).

5. 

### Did the District Court deny Kao a fair trial under the doctrine of cumulative error? "The doctrine of cumulative error 'refers to a number of errors which prejudice defendant's right to a fair trial. State

v. Ottwell (1989),239Mont. 150,157,

### 779 P.2d 500,504 (citations omitted). Kao asserts that the District Court cumulatively erred by 1)

### allowing the fact thatKaowas incarceratedwhenhewrote his letter admitting that he intimately touched E.M., 2) disallowing Kao's testimony regarding alleged sexual abuse of E.M. by Tim Morris, and, 3) 

### not dismissing the charges against Kao following the State's case-in-chief or following Kao's case-in-chief. Because we have held that the District Court, 1) 

### properly allowed the fact that Kao was incarcerated when he wrote his letter, and 2) properly disallowed any evidence regarding alleged sexual abuse to E.M. by Tim Morris, we hold that the doctrine of cumulative

error is inapplicable to this case. Affirmed. 

# dmrd Chief JusticeWe 

### concur: