No. 87-492 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSMARK FRENCH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COIJNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Betsy Rrandborg, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, ~illings, Montana 

David W. Hoefer, Deputy County Attorney, Billings 

Submitted on Briefs: June 22, 1988 

Decided : August 23, 1988 

Filed: 'K~G 2 3 198' 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Mark French, the defendant, was convicted of three 

counts of sexual intercourse without consent by jury trial in 

the District Court of the Thirteenth Judicial District, 

Yellowstone County. Defendant appealed. We affirm. 

The issues raised on appeal are: 

1. Did the District Court err in denying defendant's 

motion for a mistrial? 

2. Did sufficient evidence of penetration exist to 

sustain defendant's conviction of sexual intercourse without 

consent? 

3. Did the District Court err in denying defendant's 

motion for a continuance of the trial? 

On July 7, 1987, Mark French, the defendant, was convicted under 45-5-503, MCA, of three counts of sexual 

intercourse without consent arising out of encounters that 

occurred over a five year period with his minor stepdaughter. 

French was sentenced to forty years for each count 

with the sentences to be served concurrently. 

French began living with the victim's mother in December 

1980 when the victim was two years old. French married the 

victim's mother in August 1981 and adopted the victim in 

December 1981. French lived in the same household with the 

victim until November 1985 when French and the victim's 

mother separated. 

The victim attended first grade in Billings during the 

1985-86 school year. The victim's first grade teacher noticed unusual behavior from the victim and eventually referred the victim to a school counselor. Through meetings 

with the school counselor, the victim disclosed the 
encounters that occurred with French. At trial, the victim 

testified that while French was living with the family, but 

while her mother was not at home, French would touch her 

vagina and bottom with his hands and his penis. She further 

testified that he would place his penis in her mouth and 

ejaculate. 

Supporting the victim's testimony at trial were the 

testimonies of the school counselor, who holds a Master's 

degree in counseling and a Bachelor's degree in education; a 

medical doctor who conducted a physical examination of the 

victim; the victim's mother; the victim's grandmother; and 

the victim's teacher. The school counselor, who met with the 

victim once or twice a week beginning in January 1986, testified that the victim appeared traumatized or abused. The 

counselor based this opinion on the victim's reaction when 

inquiring about French's behavior and anything he might have 

done to her and what the victim was eventually able to tell 

her about the manner in which French sexually abused her. 

When inquiring about French, the victim's reaction included 

assuming a fetal position, rocking, crying, and refusing to 

allow anyone to touch her. The medical doctor testified that 

the results of the victim's physical exam was consistent with 

recurrent anal penetration and that while the vaginal opening 

was normal size for a girl of that age, the results did not 

preclude penetration of the perineal area or the vagina. 

The victim's grandmother testified that she witnessed 

French behave peculiarly one afternoon when he came to pick 

the victim up after the grandmother had been babysitting. 

Specifically, the grandmother testified that French had been 

drinking and went to wake the victim from her nap. The 

grandmother went to check on them and saw French lying across 

the bed with the victim on top of him giving her a long kiss 

with his eyes closed while rolling back and forth. French 
stopped when he noticed the grandmother and then took the 

victim to the living room area, and apparently believing he 

was unobserved, kissed her some more, pulled her panties 

down, patted her bottom, and told her she had a "cute little 

butt. " 

The victim's mother testified to occasions when French 

and she were in bed and French would call her by the victim's 

name. She further testified that the victim would complain 

about soreness in her genitalia and rectal areas but did not 

want her mother to tell French about her complaints. The 

victim's teacher testified that the victim displayed unusual 

behavior for a six year old, in that she was very shy, jumpy, 

skittish and masturbated frequently. The teacher further 

testified that during one teaching session when the teacher 

was focusing on "warm fuzzies," things that people do to make 

you feel good inside, and "cold pricklies," things that 

people do to make you feel bad or to hurt you, that the 

victim, who was usually shy and reserved in the classroom, 

blurted out that her dad gave her cold pricklies every time 

her mom left the house. 

French denied having any type of sexual intercourse with 

his minor stepdaughter. The jury, after hearing all the 

testimony, found French guilty of all three counts of sexual 

intercourse without consent with the victim. French appeals 

the conviction, raising three issues. 

The first issue French raises is whether the District 

Court erred in denying French's motion for a mistrial. 

The District Court, after considering the circumstances, 

is in the best position to determine whether the responses by 

the school counselor were bases for a mistrial. When a court 

exercises its power to nullify a jury's verdict by granting a 

motion for a mistrial, this "power ought to be used with the 

greatest caution, under urgent circumstances, and for very 
plan and obvious causes; . . ." State v. Close (Mont. 1981), 

623 P.2d 940, 945-46, 38 St.Rep. 177, 183 (quoting United 

States v. Perez (1824), 22 U.S. (9 Wheat) 579, 580). This 

Court's function on appeal is to determine whether the 

District Court abused its discretion by not granting a 

mistrial. Close, 623 P.2d at 946, 38 St.Rep. at 183. 

French argues that the District Court should have granted his motion for a mistrial. French bases this argument on 

the school counselor's responses to questions by the prosecutor on whether the counselor believed the now eight year old 

victim was telling the truth. The three questions by the 

prosecutor that French points to are: 

Q. And so the fact that she would tell 

you things, and then later deny it, did 

not imply to you that she was lying? 

A. I have never been convinced that she 

has ever lied to me. 

Q. And so what we really need to get 

down to is: Do you feel that most of 

what she said was the truth? A. There 

is no question in my mind that what she 

told me was the truth. 

. Now, did you believe that she was 

responding accurately or not embellishing when she answered those questions? 

French objected to the last of these three questions 

addressed to the school counselor. 

To support his argument, French relies upon State v. 

Brodnkk (1986), 718 P.2d 322, 43 St.Rep. 755 to argue that 

this Court does not allow an expert witness to testify on 

whether the expert believes that the witness is telling the 

truth. In Brodniak, we held that an expert's testimony 

explaining rape trauma syndrome is permissible, but that the 

expert could not testify as to whether she believed the 

witness was telling the truth. Brodniak, 718 P.2d at 327-29, 
43 St.Rep. at 758-63. French therefore argues that this is a 

basis for granting his motion for a mistrial. We disagree. 

French fails to acknowledge our more recent decision, 

State v. Geyman (1986), 729 P.2d 475, 43 St.Rep. 2125. In 

Geyman we addressed for the first time the admissibility of 

expert testimony when a child is subject to sexual assault. 

After assessing the relevant literature and other jurisdictions' treatment of the subject, we held that "expert testimony is admissible for the purpose of helping the jury to 

assess the credibility of a child sexual assault victim." 

Geyman, 729 P.2d at 479, 43 St.Rep. at 2131. A child's reaction to being subject to sexual assault of any form may 

include responses most adults, unfamiliar with the subject, 

find peculiar. A child may, for example, fail to disclose 

the defendant's criminal sexual acts immediately and may also 

oscillate between admitting the abuse and denying it. An 

expert witness's testimony merely aids the jurors in 

assessing a child's credibility under such abusive circumstances, but in no way impinges upon the jury's obligation to 

decide ultimately the victim's credibility. Geyman, 729 P.2d 

at 479-80, 43 St.Rep. at 2131. 

In light of the recent case law, we hold that the District Court did not abuse its discretion by denying French's 

motion for a mistrial based on the school counselor's opinion 

as to whether the eight year old victim was telling the 

truth. 

The second issue French raises on appeal is whether 

sufficient evidence of penetration exist to sustain intercourse without consent. 

In arguing that insufficient evidence exist to support 

the jury's verdict, French notes that under Count I he was 

charged with having vaginal intercourse with the victim, yet 

the physician did not testify conclusively that the victim 
was subject to recurrent internal and complete vaginal penetration. French then argues, based upon the foregoing, that 

"no evidence whatsoever" supported the jury's verdict as to 

Count I and therefore that the evidence supporting Counts II 

and I11 should also be found insufficient. We again 

disagree. 

French fails to acknowledge the current statute defining 

sexual intercourse and other evidence in the record. Sexual 

intercourse, as used in 5 45-5-503, MCA, includes 

penetration, however slight, of the vulva. Section 

45-2-101 (61) , MCA. Complete internal vaginal intercourse is 

not necessary. The record reveals that the victim frequently 

complained of soreness in her perineal area, the physician 

testified that the area was red and would not preclude complete internal vaginal intercourse nor perineal rubbing, and 

further, the victim testified that French tried to put his 

penis in her vagina. 

When determining whether sufficient evidence supports 

the jury's verdict on appeal, this Court will view the evidence in the light most favorable to the prosecution, and 

will uphold the verdict if a reasonable mind could have found 

the essential elements of the crime beyond a reasonable 

doubt. State v. Oman (1985), 707 P.2d 1117, 1120, 42 St.Rep. 

1565, 1568-69; State v. A.D.M. (1985), 701 P.2d 999, 1000, 42 

St.Rep. 916, 918. In light of the statutes and the evidence, 

we hold that sufficient evidence exists to allow the jury to 

conclude that French performed vaginal intercourse on the 

victim. 

French's half-hearted argument that Counts I1 and 111, 

which are based upon his performing anal and oral intercourse 

on the victim, should also be found insufficient because "no 

evidence whatsoever" supported his conviction for vaginal 

intercourse is without substance. Besides finding sufficient 
evidence to support his conviction for vaginal intercourse, 

the record also contains sufficient evidence to support both 

Counts I1 and 111. Such evidence includes the victim's own 

testimony that French performed anal and oral intercourse on 

her, the physician's testimony that the results of the victim's physical examination were consistent with recurrent 

anal penetration, and the school counselor's as well as the 

mother's and grandmother's testimonies. 

A conviction of sexual intercourse without consent is 

sustainable based entirely on the uncorroborated testimony of 

the victim. State v. Lamping (1988), 752 P.2d 742, 746, 45 

St.Rep. 616, 620; State v. Maxwell (1982), 198 Mont. 498, 

503, 647 P.2d 348, 351. While the victim's testimony alone 

is sufficient in this case, it is nonetheless supported by 

other evidence. We therefore hold that sufficient evidence 

exists to allow the jury to conclude that French performed 

anal and oral intercourse on the victim. 

The last issue French raises on appeal is whether the 

District Court erred in denying his motion for a continuance 

of the trial. 

French's motion for a continuance is based upon French's 

desire to undergo a psychological evaluation. French argues 

that no one would have been prejudiced by granting the motion 

for a continuance, stating that the evidence indicated he had 

not seen his children since the fall of 1986 and no evidence 

existed that he had engaged in any similar activity since 

1986. In support of the motion, French argues that he would 

suffer prejudice as a resul-t of the denial of the motion 

because he did not have time to explore the possibility of 

utilizing the psychologist's testimony. Once again, we 

disagree. 
The controlling statute to determine whether the District Court should have granted French's motion for a 

continuance is S 46-13-202 (3), MCA. This statute states: 

All motions for a continuance are addressed to the discretion of the trial 

court and shall be considered in the 

light of the diligence shown on the part 

of the movant. This section shall be 

construed to the end that criminal cases 

are tried with due diligence consonant 

with the rights of the defendant and the 

state to a speedy trial. 

On appeal, this Court will not reverse the District Court 

unless the court clearly abused its discretion. State v. 

Walker (1987), 733 P.2d 352, 355, 44 St.Rep. 363, 366. 

This Court has consistently held that before a motion 

for a continuance is granted to allow the movant more time to 

obtain evidence, the movant must have shown the exercise of 

due diligence in procuring the desired evidence. Walker, 733 

P.2d at 354, 44 St.Rep. at 365-66; State v. Lance (Mont. 

1986), 721 P.2d 1258, 1269-70, 43 St.Rep. 1086, 1097-98; 

State v. Van Natta (1982), 200 Mont. 312, 321, 651 P.2d 57, 

61. The legislature further requires that "[a] motion to 

postpone a trial on grounds of the absence of evidence shall 

only be made upon affidavit showing the materiality of the 

evidence expected to be obtained and that due diligence has 

been used to procure it." Section 25-4-501, MCA. French has 

done neither. 

The record reveals that French's trial date had already 

been rescheduled twice. The April trial date was rescheduled 

after the District Court granted French's motion for a 

continuance because he had inadequate time to prepare for 

trial. The June trial date was vacated by the court on its 

own motion and rescheduled for July 6, 1987. French ' s 
request, informally made a week before the trial, would have 

reset the trial date a third time. 

French offers no evidence or argument that he exercised 

due diligence in pursuing a psychological evaluation. The 

trial date had already been rescheduled once at the request 

of French, which allowed him three more months to prepare for 

trial. No formal affidavit was submitted as required by 5 

25-4-501, MCA. 

In granting a motion for a continuance, the statute, $ 

46-13-202 (3), MCA, clearly allows the District Court to 

exercise its own discretion after considering the diligence 

put forth by the movant. In light of the minimal diligence 

exercised by French, we hold that the District Court did not 

abuse its discretion by denying French's second motion for a 

continuance so as to allow French to undergo a psychological 

evaluation. 

Affirmed. / 

We Concur: // 

6 

/ Chief Justice / 

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/ 

Justices