No. 86-280
IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

STATE OF MONTANA, Plaintiffand Respondent,-vsHAROLD NOEL ST. GODDARD, Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County ofYellowstone, The HonorableG. Todd Baugh, Judgepresiding. COUNSEL OF RECORD: ForAppellant: DonaldA. Garrity, Helena,Montana For Respondent:
Hon. Mike Greely,Attorney General,Helena,Montana Harold Hanser,CountyAttorney, Billings, Montana DonnaK. Heffington, Deputy County Atty., Billings, Montana

Submitted on Briefs: Feb. 13, 1987 Decided: 

### March 19, 1987 Filed: 

### W(AR

### 1 9

## 1987

ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of theCourt.
Defendant, Harold St. Goddard, appeals a Yellowstone County District Court jury verdict convicting him of sexual intercoursewithout consent. We affirm. Defendant was a teacher and track coach during the school years 1983-84 and part of 1984-85. The victim, C.L.,
was under the age of 16 and an eighth grader at another school. C.L. contends that during this time, she and defendant entered into a romantic liaison. A sexual relationship allegedly started with defendant fondling C.L.
on December 17, 1983. Sexual intercourse eventually occurred
on numerous occasions. However, C.L. isapparently unable to remember specificdetailsordates otherthanAugust 9, 1984. C.L. testified attrialthat she was attending a debate conference in Billings, Montana, on August 9, 1984. Defendant allegedly came to the dorm where she was staying and drove her to a motel where he had rented a room. C.L. testifiedthat shebecame angrywith defendant thatnight and did not wish toengage in sexual intercourse with him. She further testified that she fellasleepand awoke todefendant performing sexual intercourseon her. Defendant allegedly ended the relationship in the fall of 1984. C.L. wrote numerous letterstodefendant asking him to contact her. The letters contained false information designed to engage defendant's sympathies and force him to communicate with her. C.L.'s mother found drafts of the letters in C.L.'s wastebasket. Charges were thereafter brought againstdefendant, allegingthatdefendant engaged in sexual intercourse without consent with an individual under the age of 16 on August 9, 1984.Defendant denies having a romantic or sexual relationship with C.L. C.L. babysat for his two sons. Defendant and his wife were friends of C.L.'s parents. Defendant contends thathe and C.L.'s mother had an affair in the summer of 1984. After finding his wife in bed with defendant,C.L. 

### 's step-father sought revenge by having these chargesbrought. The jury trial lasted five days. Testimonywas obtained from many individuals, including defendant, the victim, her friends, her doctor and her social worker, Linda Crummett. Ms. Crummett is a clinical social worker who specializes in treating victims of sexual abuse. She had been counseling C.L. for sexual abuse for nearly a year at the time of the trial. Ms. Crummett was a witness for the State. On cross-examination, victim's counsel elicited the following testimony: Q. Ms. Crummett, you indicated that [C.L.] had evidenced suicidal tendencies, anxiety, extremely worried? A. Yes. Q. Now if you had falsely accused someone of having sexually assaultedyou don't you think those symptoms might likelybe present? A. I don't think they could be maintained over this amount of time. Q. You don't think they could? A. Nor do Ithink shewould submit herself to this kind ofprocess. Q. You don't think shewould be extremelyworried, she'd be anxious or be suicidal if she falsely accused this man of having had sexual intercourse with her, that'syour testimony?
A. That's possible, but Idon't think it could be sustained.Q. Again your testimony isbased upon what shehas told you, what the county attorney has told you, what the investigating officers have told you, and what her parents have told you? A. Yes,and Ibelieveher. Q. And youbelieveher?
A. Yes, Ido.
Tr. vol. I,p. 46, In. 1-24. Defense counsel made no objection to ormotion to strike Ms. Crummett's comment that she believed the victim. There
was no motion for mistrial either. In her closing argument, the prosecutor briefly referred to Ms. Crumrnett's statement that she believed the victim's story. Again, no objection
wasmade. Following five hours of deliberation,the jury reached a guilty verdict. Defendant was subsequently sentenced to ten years in the Montana State Prison and ordered to pay C.L. $3,000 for counseling expenses. Two issues are raised on appeal: 1. In a prosecution for sexual intercourse with a child,may an expert in sexual abuse express the opinion that she believes the story of theprosecuting witness? 2. Was it error to allow the prosecuting witness to testify that she and the defendant had engaged in sex on other occasions? Appellant objects to Ms. Crummett's statement that she believed the prosecuting witness as invading the province of the jury. Appellant acknowledges thatno objection ormotion to strike was entered at the time Ms. Crummett made the statement. He claims,however, that the issue may be raised
on appeal anyway under the "plain error" rule. However, the1983 Legislature substantially limited application of the "plain error" rule in criminalappeals. 46-20-104. Scope of appeal by defendant. 

# .. . (2) Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure tomake a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-702. 46-20-702. Types of errors noticed on appeal.



# . . No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt orpunishment and that:

(1) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;

(2) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or (3) material and controlling facts upon which the claim ispredicated were not known to the defendant orhis attorney and could not have been ascertained by the exercise of reasonablediligence. The alleged error does not meet the criteria contained in S 46-20-702, MCA. We therefore refuse to entertain the first issue. The second issue is whether it was error to allow C.L. to testify about other occasions when she and the defendant had engaged in sexual intercourse. Rule 404(b), M.R.~vid. and State v. Just (1979), 184 Mont. 262, 602 P.2d 957, control. Rule 404(b),M.R.Evid. states: (b) Other crimes, wrongs, acts. 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.
In Just, supra, this Court further limited the use of other crimes evidence. Before other crimes evidence may be admitted,the State must provide: 1) notice of the introduction of the evidence; 2) an explanation to the jury at the time of the introduction of the evidence about thepurpose for which the evidence is introduced; and 3) an instruction that the evidence is to be received only for the enumerated limited purposes. Just, 184Mont. at 274, 602P.2d at 963-964. All criteria have been met in this instance. A Just, noticewas filed by the State 3 days before the start of the trial. The jurywas cautionedbefore the introductionof the evidence. See transcript,vol. I,p. 59, In. 4-18. The jury
was instructed on the samematter in InstructionNo. 4. Just, supra, also contains a four-part test for determining whether the other crimes are substantively admissible. They are: 1) similarity of crimes or acts; 2) nearness in time; 3) tendency to establish a common scheme,plan or system;and 4) probative value of the evidence outweighs the prejudicial effect. Just, 184Mont. at 269, 602P.2d at 961. Again, all criteria are met. The evidence is of crimes identical to the one with which defendant is charged. The acts occured within a 9month span. They show the system of operation engaged in by the defendant, engaging in a sexualrelationship with C.L. Finally, their probative value outweighs their prejudicial effect. Affirmed.

We Concur: