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, following a 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 District Court improperly allow evidence of Kao's 

prior crimes, wrongs, or acts? 

4. Did the District Court improperly exclude certain evidence 

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, she visited 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 

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(DFS). During a counseling session with Linda Noble of DFS, E.M. 

disclosed that she had been sexually abused by her stepfather, Kao. 

E.M. also told her mother, Frances, of the abuse incident. 

Linda Noble promptly notified the Lake County Sheriff's Office 

of the abuse incident; the Sheriff's Office, in turn, interviewed 

E.M. In a statement made to Officer Paula Gill on March 6, 1989, 

E.M. stated that Kao had touched her vaginal 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 letter to Kao, who was then serving 

a sentence for an unrelated matter in Montana State prison. In her 

letter, Frances told Kao that E.M. had recently run away from home 

on two occasions and that E.M. was being difficult to manage. 

Frances, however, did not mention 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: 

The problems you are having with [E .M. ] extend 

from me. She may 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. 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. 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, Kao was charged by information with one count 

of incest. At his one-day trial on November 20, 1989, Kao 

testified that he did not sexually abuse E.M.--he stated otherwise 

in his letter only to get E.M. removed from Frances1 residence 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 for being 

a persistent felony offender, both sentences to 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 charges as E.M. stated to them. The District Court 

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 

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testimony, however limited, was still hearsay, and unexcepted by 

Montana Rule of Evidence 804(b) (5) because the court failed to make 

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; Kaols conviction 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." 

Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 

61 L.Ed.2d 560, 573; restated in State v. 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 record would 

be insufficient to support a guilty verdict. We disagree. Even 

if the testimony of Noble and Gill were stricken from the record, 

Kaols letter independently establishes that Kao committed the crime 

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 the person of another for the purpose 

of arousing or gratifying the sexual desire of 

either party. 

This Court has liberally construed what 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, excludes what part of E.M.'s body he 

intimately touched, this exclusion does not negate Kaols admission 

that his touching was intimate. This letter alone is sufficient 
to 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 crimesl1 evidence 

violated the notice requirements of State v. Just (1979), 184 Mont. 

262, 602 P.2d 957. Kaols imprisonment was mentioned by the State 

three times at trial: during opening statement, during direct 

examination of Frances, and during closing argument. However, 

Kaols underlying offense for his imprisonment was never mentioned. 

Kaols argument is without merit, procedurally and substantively. Procedurally, Kao waived appellate review of this issue 

because he failed to timely object to the admittance of this fact 

when it was mentioned during the various times at trial. See 88 46- 

20-104 and -701, MCA; State v. Kills on Top (Mont. 1990), 793 P.2d 
1273, 1299, 47 St.Rep. 984, 1012; State v. Ungaretti (1989), 239 

Mont. 314, 319, 779 P.2d 923, 926. 

Furthermore, Kaols argument lacks substantive merit as the 

fact that Kao was in prison when he wrote the letter was not 

introduced to prove 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 statements were insignificant and did 

not prejudice Kao in light of the entire record. We therefore hold 

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 the District Court improperly exclude certain evidence 

offered by Kao? 

During trial, Kao testified that he was aware that Tim 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 

ordered Kaols testimony stricken from the record and instructed the 

jury to disregard it. 

Section 45-5-511(4), MCA, provides: 
No evidence concerning the sexual conduct of 

the victim is admissible in prosecutions 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 sexual activity to show the origin of 

semen, pregnancy, or disease 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. Kaols argument 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]vidence of a 

pertinent trait of character of the victim 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. Kaols assertion 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, Kaols argument lacks merit as the "other crimes" involved 
allege sexual conduct, which again, is specifically prohibited 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), 239 Mont. 150, 157, 779 P.2d 500, 504 (citations 

omitted). Kao asserts that the District Court cumulatively erred 

by 1) allowing the fact that Kao was incarcerated when he wrote 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 Justice 
We concur: