NO. 94-025

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vsGRANT HILDRETH,

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Beaverhead,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael Donahoe, Attorney at Law, Helena,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Pamela P.

Collins, Assistant Attorney General, Helena, Montana

Thomas R. Scott, County Attorney, Calvin J. Erb,

Deputy, Dillon, Montana
Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from a jury verdict from the Fifth Judicial

District, Beaverhead County, finding appellant Grant Hildreth

guilty of sexual assault, a felony, in violation of § 45-5-502,

MCA. Hildreth appeals his conviction and the District Court's

denial of a motion for new trial. We affirm.

Hildreth raises several issues on appeal, which we consolidate

and restate as follows:

1 . Did the District Court err by failing to hold an omnibus

hearing?

2 . Did the District Court err in instructing the jury that

the State was not required to establish the date of the offense

with exact precision?

3 . Did the District Court err by allowing the State to call

certain rebuttal witnesses?

4 . Did the District Court err by denying Hildreth's motion b

limine in the presence of the jury?

5 . Did Hildreth receive ineffective assistance of counsel?

6 . Is Hildreth entitled to a new trial based on the State's

attempt to offer inadmissible hearsay evidence?

7 . Is Hildreth entitled to a new trial based on the doctrine

of cumulative error?

In the fall of 1989, in an effort to improve her algebra

grades, K.D. began tutoring sessions with her cousin, Grant

Hildreth. At the time, K.D. was a fifteen-year-old high school

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sophomore and Hildreth was 'a 26-year-old attending college. The

weekly tutoring/study sessions began in early October 1989. The

sessions were held in the evenings at the college Hildreth

attended.

The night before K.D.' s Chapter Four algebra test, on or about

November 16, 1989, Hildreth picked up K.D., and they drove to the

college and studied from approximately 8 p.m. to approximately 9:30

p.m. At about 9:30 p.m., Hildreth left the study room to get a

drink. When he did not return, K.D. went down the hall to look for

him.

K.D. testified at trial that she found Hildreth down the hall,

and that he then asked to give her a back rub. K.D. said that she

was hesitant and Hildreth grabbed her arm. K.D. does not remember

how she got to the floor, only that she was lying face down on the

floor with Hildreth rubbing her back. K.D. testified that Hildreth

then lifted her shirt over her head and attempted to undo her bra.

They struggled over the bra. Holding her down with his hand,

Hildreth succeeded in removing her bra and, while sitting on her

back, pulled off her pants. K.D. testified that after throwing her

clothing into a hallway, Hildreth then undid his pants and began

moving his penis up and down on top of her, eventually ejaculating

on her buttocks.

K-D. testified that later, after Hildreth drove her home, she

washed, but was too embarrassed to tell her parents. At trial,

K.D. testified that Hildreth later apologized and suggested that

she go to her bishop and repent because he had gone to his bishop

3
and talked to him about what happened.

In August of 1990, K.D.'s parents learned of the incident

through two letters written by K.D. which her father inadvertently

found in her room. The letters described what was going on in

K.D.'s life, and what Hildreth was doing to her. During trial,

K.D. testified about several other incidents where Hildreth had

subjected her to similar sexual assaults.

After initially thinking that the situation could be handled

by the family or through a Later Day Saints church procedure,

K.D.'s parents eventually went to the authorities. Hildreth was

charged, by information dated July 9, 1991, with sexual assault, a

felony. A two-day trial was held in which Hildreth raised an alibi

defense, saying he was attending his own birthday party on November

16, 1989. At the close of trial, the jury returned a guilty

verdict on the felony sexual assault charge. The District Court

deferred imposition of sentence for six years upon certain terms

and conditions. Execution of sentence was stayed pending

Hildreth's motion for a new trial. The court denied the motion,

and the stay of execution was vacated.

I

Did the District Court err by failing to hold an omnibus

hearing?

Pursuant to $5 46-13-110(l), MCA, an omnibus hearing must be

held in criminal cases at least 30 days before trial. In this

case, no omnibus hearing was held. Hildreth claims that this was

prejudicial error since: defense counsel was given 20 days instead

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of 30 days notice that the state intended to introduce "other bad

acts" evidence: defense counsel did not have an opportunity to

argue that evidence of K.D. 's prior sexual misconduct should be

admitted; and the defense was surprised by the State's attempt to

introduce certain physical evidence.

On appeal, this Court will not reverse the district court

unless the record shows that the error was prejudicial. &g fj 46-

20-701(1), MCA. We hold that Hildreth was not prejudiced by the

lack of an omnibus hearing.

First, Hildreth notes that one of the purposes of an omnibus

hearing is to discuss the use of other bad acts evidence. See§

46-13-110(3)(h), MCA. The other acts in question were the other

sexual assaults which K.D. claimed Hildreth committed. Hildreth

claims that he was prejudiced because without the omnibus hearing,

he did not have 30 days to prepare for the use of other bad acts

evidence. Hildreth's claim of prejudice is unpersuasive since the

State gave Hildreth notice of its intent to use other bad acts

evidence pursuant to the demands of State v. Just (1979), 184 Mont.

262, 273, 602 P.2d 957, 963; as modified by State v. Matt (1991),

249 Mont. 136, 142, 814 P.2d 52, 56. The State gave Hildreth this

Just notice 20 days before trial. Thus, Hildreth had 20 days to

prepare for the use of the evidence. We hold that, even without

the omnibus hearing, Hildreth had ample notice of the State's

intention to use other bad acts evidence, and opportunity to

prepare for such evidence.

Next, Hildreth claims that the lack of an omnibus hearing

5
deprived him of the opportunity to argue that evidence of K.D.'s

sexual misconduct should have been admitted. Montana's rape shield

law only allows testimony regarding the victim's prior sexual

conduct when the prior sexual activity was with the offender, or to

show the origin of semen, pregnancy, or disease when it is at issue

in the prosecution. See § 45-5-511(Z), MCA. Hildreth contends

that counsel could have argued that the statute is unconstitutional

as it abridges the Sixth Amendment right to confront witnesses.

This Court has recognized that there may be instances where

the defense can question the victim about prior sexual accusations.

State v. Van Pelt (1991), 247 Mont. 99, 104, 805 P.2d 549, 552-53.

In Van Pelt, this Court recognized that a defendant could crossexamine the victim where there was evidence of prior accusations

which have been adjudicated as false. Van Pelt, 805 P.2d at 552-

53. Prior accusations which have not been adjudicated as false

will not be admitted, so as to preserve the integrity of the trial:

this limitation is not an infringement upon a defendant's right of

confrontation. Van Pelt, 805 P.2d at 552-53; citing State v.

Anderson (1984), 211Mont. 272, 284-85, 686 P.2d 193, 200. The Van

&.J& exception to the rape shield law does not apply here.

Hildreth does not claim that K.D. made accusations that had been

adjudicated as false before his trial. Thus, Hildreth was not

prejudiced by being unable to make this argument at an omnibus

hearing.

Finally, Hildreth asserts that he was prejudiced because he

was surprised at trial by the State's attempt to introduce into

6
evidence some of K.D.'s clothing. At trial, Hildreth objected

because the State failed to produce this evidence prior to trial.

The court sustained this objection, and the physical evidence was

excluded. We hold that Hildreth was not prejudiced by the lack of

an omnibus hearing.

II

Did the District Court err by instructing the jury that the

State was not required to establish the date of the offense with

exact precision?

At trial, Hildreth offered as an alibi his contention that on

November 16, 1989, he was attending his own birthday party held one

day after his actual birthday. The District Court gave the

following jury instruction:

You are instructed that when the alleged victim for the

offense is a child, the State is not required to

establish the date of the alleged offense with exact

precision. It is sufficient that the State has proved

that on or about the 16th day of November, 1989, the

alleged offense was in fact committed.

Hildreth argues that the District Court effectively amended

the charge against him by giving the challenged instruction.

Hildreth points to the State's affidavit for leave to file an

information which states that the offense occurred on November 16,

1989, rather than on or about November 16, 1989. However, the

information filed against him states that the offense occurred on

or about November 16, 1989. The information itself, not the

affidavit supporting leave to file an information, is the charging

document. See 95 46-11-101 and 46-11-102, MCA. The court's

instruction did not amend the information as to the approximate

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date of the offense; rather it mirrored it. We hold that the

District Court did not amend the charge against Hildreth by giving

the disputed instruction.

Next, Hildreth argues that the District Court impermissibly

undermined his alibi defense by giving the challenged instruction.

We previously examined whether time becomes a material element of

the offense charged when the defendant raises an alibi defense.

See State v. Shaver (1988), 233 Mont. 438, 760 P.2d 1230. In

Shaver, the defendant planned to rely on an alibi defense. There

was a discrepancy between the time the information stated the

offense occurred and the time the victim testified that it

occurred. The discrepancy in time between the charging document

and the victimIs testimony was over a month. Shaver, 760 P.2d at

1232. In upholding the defendant's conviction, this Court stated

that: "Defendant cannot restrict the state's case by merely

asserting intent to rely on an alibi defense for a limited period

of time within which the crime could have occurred." Shaver, 760

P.2d at 1234-35; citing State v. Clark (1984), 209 Mont. 473, 483,

682 P.2d 1339, 1344.

In the present case, the discrepancy between the approximate

date of the offense given in the information and the approximate

date K.D. testified to is a few days at most. Since we allowed

testimony in Shaver with a greater discrepancy, the instruction

here is certainly proper. We hold that, even though Hildreth

asserted an alibi defense, the disputed instruction the District

Court gave is the correct statement of the law for this case. We

8
hold that the District court did not err by giving the disputed

instruction.

III

Did the District Court err by allowing the State to call

certain rebuttal witnesses?

In rebuttal, the State called three witnesses. Hildreth

contends that these witnesses were called to rebut his alibi

defense. Section 46-15-322(6), MCA, states that when witnesses

will be called to rebut an alibi defense, the prosecution must give

the defense written notice of the witnesses and their statements

five days in advance of trial.

It appears that two of the State's three rebuttal witnesses

were called to impeach Hildreth's witnesses, not rebut his alibi

defense. Hildreth's mother had testified that she was at

Hildreth's birthday party on November 16, 1989. One of the State's

rebuttal witnesses, who kept records for Hildreth's parents'

bowling league, testified that Hildreth's mother called sometime

after Hildreth was charged and said that Hildreth was bowling with

her on November 16, 1989. Another witness testified that

Hildreth's mother made statements to the witness that were

inconsistent with her trial testimony: these statements did not

involve the alibi defense, and are discussed in part V of this

opinion.

Finally, the State called Deputy Keith Reeder in rebuttal. It

appears that the State attempted to solicit testimony from Deputy

Reeder that would rebut Hildreth's alibi defense in violation of

9
the notice requirements contained in 5 46-15-322(6), MCA. However,

this Court will only reverse prejudicial error. See 5 46-20-

701(1), MCA. Hildreth objected to Deputy Reeder's testimony at

trial, the court sustained the objection, and Reeder then stepped

down (Reeder's rebuttal testimony is further discussed in part VI

of this opinion). We hold that Hildreth was not prejudiced by the

testimony of the rebuttal witnesses.

I V

Did the District Court err by denying Hildreth's motion &J

limine in the presence of the jury?

Just before the State began to question K.D. about similar

sexual assaults by Hildreth, the court ruled against Hildreth's

motion in limine to exclude such evidence. The court also

cautioned the jury that it could not consider the evidence to prove

Hildreth's character in order to show he acted in conformity with

that character in the charged offense. Hildreth contends that by

ruling on the motion in limine in the jury's presence, the court

improperly commented on the evidence.

In support of this contention, Hildreth cites State v. Liddell

(1984), 211Mont. 180, 685 P.2d 918. In Liddell, the defendant was

charged with sexual intercourse without consent. Liddell, 685 P.2d

at 920. The court instructed the jury that the charge in question

was easily made and difficult to defend. Liddell, 685 P.2d at 921.

This Court held that the instruction was an improper comment on the

evidence which was not required by law or public policy. Liddell,

685 P.2d at 922.

10
Liddell is inapplicable to the present case. The court's

statement in Liddell was an obvious comment on the evidence: here,

the court's statement was not. Hildreth claims that by ruling on

the motion in front of the jury, the court drew attention to the

evidence. The record does not support Hildreth's contention. The

court simply stated that it was ruling against Hildreth's motion ti

limine at that stage of the trial, and then properly cautioned the

jurors on the use of the evidence. See Rule 404(b), M.R.Evid.

These statements do not rise to the level of improper comment on

the evidence. We therefore hold that the District Court did not

err by denying Hildreth's motion in limine in the presence of the

jury.

V

Did Hildreth receive ineffective assistance of counsel?

Hildreth alleges several instances of error committed by trial

counsel which, Hildreth claims, rise to ineffective assistance of

counsel. This Court reviews ineffective assistance of counsel

claims using the two prong test set forth in Strickland v.

Washington (1984), 466 U.S. 668, 80 L.Ed.Zd 674, 104 S.Ct. 2052.

State v. McLain (1991), 249 Mont. 242, 244-45, 815 P.2d 147, 149.

For an ineffective assistance of counsel argument to succeed, we

require that the appellant show that counsel's performance was

deficient, and that the deficient performance prejudiced the

appellant to such a degree that the appellant was denied a fair

trial. McLain, 815 P.2d at 149; citing State v. Boyer (1985), 215

Mont. 143, 695 P.2d 829. Also, the appellant must establish

11

-,.,,. -
prejudice, which requires. that he demonstrate a reasonable

probability that, but for counsel's errors, the result of the

proceeding would have been different. State v. Kolberg (1990), 241

Mont. 105, 109, 785 P.2d 702, 704.

Hildreth first claims that his trial counsel was ineffective

because counsel did not attempt to introduce evidence of the

victim's prior sexual misconduct. In part I of this opinion, we

held that the Van Pelt exception to Montana's rape shield law was

inapplicable here; as a result, evidence of the victim’s prior

sexual conduct would not have been admissible. Thus, Hildreth does

not demonstrate ineffective assistance of counsel through counsel's

failure to attempt to introduce evidence of K.D.'s prior sexual

misconduct.

Next Hildreth argues that his trial counsel erred by:

allegedly opening the door to evidence of Hildreth's prior bad

acts, failing to request a lesser included offense instruction, and

allegedly arguing a consent defense in closing argument. Upon

review of the record, it appears that these actions were taken for

strategic reasons. While Hildreth's appellate counsel may not

agree with these actions, we have held that we will not test trial

counsel's adequacy by the greater sophistication of appellate

counsel, nor by that counsel's unrivaled opportunity to study the

record at leisure and cite different tactics of perhaps dubious

efficacy. State v. Langford (1991), 248 Mont. 420, 433, 813 P.2d

936, 946; citing State v. Martz (1988), 233 Mont. 136, 140, 760

P.2d 65, 68. We hold that these alleged deficiencies do not amount

12
to ineffective assistance of-counsel.

Hildreth further argues that his trial counsel was deficient

because counsel failed to move for a mistrial when the State

offered some of K.D.' s clothing into evidence. When the State

attempted to offer this evidence, Hildreth's counsel objected on

the grounds that this evidence had not been disclosed. The court

sustained the objection, the items were not introduced into

evidence, and the court admonished the jury to disregard the

offered evidence.

In order to grant a mistrial, the moving party must

demonstrate manifest necessity coupled with the denial of a fair

and impartial trial. State v. Benton (1992), 251 Mont. 401, 404,

825 P.2d 565, 567. This Court has held that the failure to object

does not constitute ineffective assistance of counsel where the

objection lacks merit and would have been properly overruled.

State v. Rodgers (1993), 257 Mont. 413, 421, 849 P.2d 1028, 1033.

A mistrial would not have been properly granted in this case if it

were requested as Hildreth could show neither manifest necessity

nor denial of a fair trial. Thus trial counsel's failure to

request a mistrial does not amount to ineffective assistance of

counsel.

Finally, Hildreth asserts that counsel's failure to object to

hearsay evidence offered in rebuttal amounted to ineffective

assistance. We disagree. During the defense's case-in-chief,

Hildreth's mother denied going to K.D.' s home and making certain

statements to K.D.'s mother. In rebuttal, K.D. 's mother testified

13
that Hildreth's mother did~ indeed make these statements. The

rebuttal testimony was admissible hearsay as prior inconsistent

statements. &.e Rule 801(d)(l), M.R.Evid. An objection to this

evidence would not have been properly sustained: thus, the failure

to object does not amount to ineffective assistance of counsel.

Racers, 849 P.2d at1033. We hold that Hildreth received effective

assistance of counsel.

V I

Is Hildreth entitled to a new trial based on the State's

attempt to offer inadmissible hearsay evidence?

During rebuttal, the State called Deputy Keith Reeder to

testify. Deputy Reeder testified that he had spoken with a church

elder who had attended Hildreth's birthday party in November of

1989. The State then asked Deputy Reeder if the elder had told him

when the party occurred. Defense counsel objected to the question

as hearsay, and the court sustained the objection. However, it

appears that before Hildreth's counsel objected, Deputy Reeder was

able to respond that the elder said he had attended the party on

the fifteenth. Hildreth claims that this attempt to put the

objectionable testimony into evidence amounted to prosecutorial

misconduct.

We have long held that we will not presume prejudice in

criminal cases; prejudice must appear from the denial or invasion

of a substantial right from which the law imputes prejudice. State

v. Rhyne (1992), 253 Mont. 513, 525, 833 P.2d 1112, 1120; citing

State v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 1275, 1281.

14
Our modern cases dealing with prosecutorial misconduct have

generally come in the form of the prosecutor making comments on the

evidence or comments on the defendant's failure to testify. &

Rhvne, 833 P.2d at 1120; State v. Newman (1990), 242 Mont. 315,

325, 790 P.2d 971, 977; State v. Johnson (1988), 233 Mont. 473,

477, 760 P.2d 760, 762.

In the older cases Hildreth cites, this Court found that it

was prosecutorial misconduct for the State to knowingly ask a

series of objectionable questions to more than one witness. See

State v. Jones (1914), 48 Mont. 505, 517, 139 P. 441, 445; State v.

Kanakaris (1917), 54 Mont. 180, 184, 169 P. 42, 44. In the present

case, the State asked a single objectionable question of a single

rebuttal witness. This does not amount to prosecutorial

misconduct. In addition, in Hhvne when determining whether the

conduct was prejudicial, we found it significant that the defendant

successfully objected, but did not request the court to admonish

the jury or give a cautionary instruction, or request a mistrial.

Hhvne, 833 P.2d at 1120.

Here, Hildreth successfully objected to the hearsay testimony.

Again, we find it significant that Hildreth did not request the

court to admonish the jury or give a cautionary instruction, or

request a mistrial. We hold that Hildreth does not demonstrate

that one of his substantial rights was prejudiced by prosecutorial

misconduct.

VII

Is Hildreth entitled to a new trial based on the doctrine of

15
cumulative error?

Hildreth finally argues that this Court should reverse his

conviction on the basis of cumulative error. The doctrine of

cumulative error has been considered when numerous errors prejudice

the defendant's right to a fair trial. State v. ottwell (1989),

239 Mont. 150, 157, 779 P.2d 500, 504.

In the present case, the only errors committed were that the

District Court failed to hold an omnibus hearing and the State

attempted to use a witness to rebut Hildreth's alibi without giving

Hildreth the proper notice. We held that those errors did not

prejudice Hildreth. Accordingly, we hold that the doctrine of

cumulative error does not apply in this case.

Affirmed.

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November 1, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Vincent J. Kozakiewicz

Attorney at Law

P.O. Box 588

Dillon, MT 59725

Michael Donahoe

Attorney at Law

P.O. Box 5

Helena, MT 59624

Hon. Joseph P. Mazurek

Attorney General

Justice Bldg.

Helena, MT 59620

Thomas R. Scott, County Attorney

Calvin J. Erb, Deputy

2 So. Pacific, CL #2

Dillon, MT 59725

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA