No. 90-342 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMARVIN McLAIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the ~wentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. ~c~eil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc Racicot, Attorney General, State of 

Montana, Helena, Montana; John Paulson, Assistant 

Attorney General, State of Montana, Helena, Montana; 

Larry J. Nistler, Lake County Attorney, Polson, 

Montana; Robert S. Anderson, Deputy County Attorney, 

Polson, Montana. 

For Respondent: 

Rebecca T. Dupuis, Polson, Montana. 

Submitted on briefs: May 24, 1991 

Decided: July 16, 1991 

JUL 6 199'1 

p.iERK OF SUPREPVIE COUP' 
Justice R. C. McDonough delivered the Opinion of the Court. 

Marvin McLain appeals from a jury verdict finding him guilty 

of sexual assault in violation of 5 45-5-502, MCA. The District 

Court of the Twentieth Judicial District, Lake County, sentenced 

McLain to a term of twenty years with five years suspended. We 

affirm. 

The issues submitted for review are: 

1) Whether the defendant was denied his constitutional right 

to effective assistance of counsel; 

2) Whether the District Court erred by allowing expert 

testimony that the victim was credible in her reporting of the 

sexual assault; 

3) Whether there was sufficient evidence to support the 

conviction. 

In August of 1989, nine year old D.L. lived with her mother 

at the Schultz Trailer Court in Pablo, Montana. The defendant, 

Marvin McLain (McLain) lived with his two children in a nearby 

trailer. Apparently, D.L. and McLain's children were playmates. 

McLainls children's names are Amy, who was nine years old at the 

time, and Jonathan, who was five years old. 

On the morning of August 22, 1989, D.L.'s mother went to work 

at a local discount store. D.L. was left in the care of two house 

guests who were staying with D.L. and her mother. As usual, D.L. 

played all day long with Amy and Jonathan. 

McLain had just gotten off of work from the saw mill where he 
worked the graveyard shift. He rested on his couch throughout the 

day while the children played. In the early evening hours the 

children began to bake sugar cookies at the McLain trailer. While 

the cookies were in the oven, the children began to have a pillow 

fight. According to D. L. , McLain joined in the fight and began 

tickling and wrestling with the children. When Amy left 

momentarily to check on the cookies, D.L. was on the living room 

floor on her hands and knees. McLain was on top of her, also on 

his hands and knees. At this point McLain began touching D.L. on 

her right breast. The lltouchingll continued and he squeezed her 

breast several times and then touched her between her legs. 

Later that evening, D.L.'s mother noticed that her daughter 

appeared very upset. D.L. asked to sleep in her mother's bed and 

after being tucked in told her mother about the sexual assault 

perpetrated by McLain. D.L.'s mother then called the police and 

reported the incident. 

After D.L. was interviewed by a state social worker, McLain 

was arrested and charged by information with sexual assault. The 

witnesses listed in the information included an wunknownll person 

from the Ronan Mental Health Clinic. Dr. Edward Trontel of 

Kalispell was then asked, by the state, to interview D.L. for the 

purpose of determining whether she was capable of making a credible 

report. On February 1, 1990, the State filed a motion seeking to 

substitute Dr. Trontel for the llunknownw witness. Defense did not 

object and this motion was granted. 

Trial commenced on February 22, 1990. At trial D.L. testified 
and related the story as set out above. McLain, for his part, 

denied touching D.L.'s breasts or vaginal area. He testified that 

he remembered the pillow fight but did not participate in it. He 

further testified that he caught Amy and D.L. smoking his 

cigarettes on that day and that he had informed D.L. that he was 

going to tell her mother. Amy was called as a rebuttal witness. 

She testified that she and D.L. had not gotten caught or gotten 

into any trouble for smoking cigarettes. She further testified 

that she saw her father touch D.L. between the legs. 

Following trial, the jury returned a verdict of guilty as to 

the offense of sexual assault. On March 14, 1990, sentence was 

imposed and the judgment of the court rendered. This appeal 

followed. 

I 

McLain maintains that he was not afforded his right to 

effective assistance of counsel and that his rights under the Sixth 

Amendment to the United States Constitution and Article 11, Section 

24 of the Montana Constitution were therefore violated. He asserts 

two deficiencies in his attorney's performance: (1) that counsel 

failed to object to the State's motion to substitute Dr. Trontel 

as a witness, and (2) that counsel failed to interview Dr. Trontel 

prior to trial. 

The standard for reviewing claims of ineffective assistance 

of counsel is well established. In evaluating such claims, this 

Court applies the two prong test set forth in Stickland v. 

Washington (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. 
This test requires that a criminal defendant show (1) that his 

attorney's performance was deficient and (2) that counsel's 

deficient performance prejudiced the defense to a degree which 

denied the defendant a fair trial. State v. Boyer (1985), 215 

Mont. 143, 695 P.2d 829. This test places a heavy burden upon a 

defendant who seeks to reverse a judgment on such grounds. Under 

Strickland, judicial scrutiny of counsel's performance must be 

highly deferential and the reviewing court must indulge a strong 

presumption that counselts conduct falls within the wide range of 

reasonable professional assistance. Strickland, 466 U.S. at 689. 

Failure to object to the adding of a name to the list of 

witnesses three weeks before trial under this circumstance is not 

deficient. Moreover, even if we assume that counsel's performance 

was deficient when he failed to interview Dr. Trontel, it is by no 

means apparent that these deficiencies prejudiced McLainls right 

to a fair trial. In order to prevail on this issue, McLain must 

show that a reasonable probability exists that but for his 

counsel's deficient performance, the trial's outcome would have 

been different. In light of the overwhelming evidence against him, 

McLain cannot make this showing. 

Both D.L. and McLainls daughter testified that he sexually 

assaulted D.L. Admittedly, D.L.'s testimony contained some 

discrepancies. The discrepancies mostly dealt with small details 

such as how many times he touched her or which hand he used when 

he fondled her breast. The inaccuracies contained in these 

statements do not weaken her testimony. On the whole the evidence 
presented against the defendant was overwhelming and, therefore, 

any failure to interview by McLainls counsel concerning Dr. 

Trontells testimony could not have contributed to his conviction. 

There is no showing that Dr. Trontells testimony was a surprise or 

not anticipated. 

Defendant next argues that the District Court erred when it 

allowed Dr. Trontel to testify about whether D.L. was credible in 

her reporting of this event. Previously, we have held that expert 

testimony is admissible for the purpose of helping the jury to 

assess the credibility of a child sexual assault victim. 

Generally, such testimony is admissible when the child testifies 

at trial and the child's credibility is brought into question. See 

State v. Harris (1991), 808 P.2d 453, 48 St.Rep. 62; State v. 

Geyman (1986), 224 Mont. 194, 729 P.2d 475; State v. French (1988), 

233 Mont. 364, 760 P.2d 86. 

In the case now before us, both of these factors are present. 

As stated earlier, D.L., a nine year old, testified at McLainls 

trial. During trial, McLainls counsel tried to impeach her 

testimony by setting forth inconsistencies between her testimony 

and earlier statements made to investigators, psychologists and 

lawyers. Dr. Trontel, in his testimony, explained the reasons why 

such inconsistencies often occur in the context of child sexual 

abuse. He also gave some guidance which would help the lay jurors 

understand and judge D.L. Is testimony. His explanation and his 

testimony were given in accordance with the rules set down in 
Harris. We therefore find no reversible error on this issue. 

I11 

McLain maintains that the evidence presented at trial was 

insufficient to support his conviction for sexual assault. His 

argument is based upon the inconsistencies in the evidence and the 

State's failure to show that his touching of the victim was for his 

sexual gratification. 

In reviewing these types of questions, this Court has followed 

the rule set forth in Jackson v. Virginia (1979), 443 U.S. 307, 99 

S .Ct. 2781, 61 L.Ed. 2d 560. This rule requires the reviewing court 

to determine "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." State v. Wilson (1981), - Mont . , 631 P.2d 1273. 

In this case, McLain argues that the evidence presented by the 

State was so inconsistent that no rational jury could have found 

him guilty. We disagree. As stated earlier, the alleged 

inconsistencies are inconsequential. They dealt with only small 

details of a stressful occurrence that involved a very young girl. 

There was no discrepancy involving any of the major aspects of the 

occurrence. In general D.L.Is testimony was consistent and 

believable. Furthermore it was supported, without any significant 

differences, by McLainls daughter Amy. 

McLain further contends that the evidence is not sufficient 

to support a finding that the touching of D.L. was for his sexual 

gratification. In State v. Gilpen (1988), 232 Mont. 56, 756 P.2d 
445, we held that a defendant's intent to gratify his sexual desire 

could be inferred from his conduct. Given the testimony that 

McLain pinched and stroked D.L.'s private areas several times, the 

jury's inference of his intent was reasonable. Furthermore, there 

was testimony that McLain told D.L. not to tell her mother about 

his physical contact with her. This evidence lends further support 

to the jury's verdict. 

Af f irmed. / 

We Concur: A