No. 87-305 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDOUGLAS ALBERT HOWIE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David W. Harman, Libby, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Susan Loehn, County Attorney, Libby, Montana 

Submitted on Briefs: Sept. 3, 1987 

Decided: October 13, 1987 

Filed: 1 3 1987 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a jury verdict of sexual assault 

on an eight-year-old girl. The matter was tried before the 

Honorable Robert M. Holter, Nineteenth Judicial District, in 

and for the County of Lincoln, State of Montana. Appellant 

was sentenced to six years in the Montana State Prison. 

We affirm. 

Three issues are presented for our consideration: 

(1) Whether the trial court committed reversible error 

in failing to sever Counts I1 and 111. 

(2) Whether the trial court properly refused to 

dismiss Count 11. 

(3) Whether the prosecutor committed reversible 

misconduct in posing leading questions to the victim. 

On February 5, 1987, the appellant was charged with 

three counts of sexual assault, all felonies, committed 

against an eight-year-old girl. Section 45-5-502, MCA, says 

one commits the offense of sexual assault if he "knowingly 

subjects another not his spouse to any sexual contact without 

consent . . . " Section 45-2-101(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." Montana law 

permits a maximum sentence of twenty years in prison for 

anyone convicted of sexual assault upon a victim less than 

sixteen years of age. 

The appellant was arraigned March 2, 1987, and pled not 

guilty to each count. Trial was held on June 3, 1987. At the 

close of the State's case, on motion of counsel for the 

appellant, the court dismissed Count I. The jury found 

appellant not guilty on Count 11, which charged that 
appellant made sexual contact with the girl on November 30 or 

December 1, 1986 while he was babysitting the child. The 

jury, however, convicted on Count 111, which stems from an 

incident on January 25, 1987. We note that the jury 

considered all of the evidence in this case and found that 

the evidence supported conviction in Count I11 only. 

The mother of the victim (hereinafter referred to as 

mother) lived in Libby, Montana with her daughter 

(hereinafter referred to as victim) age eight, and her son, 

age five. At the time of the offense, the appellant and the 

mother were involved in a relationship that lasted one year. 

They had spent a considerable amount of time together. The 

appellant was the mother's boyfriend. 

On January 25, 1987, the appellant invited the mother, 

her two children and some other people to his small apartment 

to watch the Super Bowl football game. Testimony at trial 

indicates that there was a considerable amount of beer 

consumed by the people at this party. At trial the appellant 

admitted that he had been drinking beer all day and that when 

questioned initially he had told a sheriff's deputy he had 

been drunk. 

That evening it was decided that the mother and her 

children would spend the night at appellant's apartment. 

When it was time to put the children to bed, the mother put 

them in appellant's bedroom, the only bedroom in the 

apartment. The mother could not persuade them to go to 

sleep, so the appellant offered to lie down with them to try 

to get them to sleep. The mother left the appellant with the 

children in the bedroom and testified that because she 

trusted the appellant, she closed the door. There was 

testimony by others present that the door was left open to 

allow the bedroom to stay warm, as the only heat source was 

in the other room. 
The children were dressed in their pajamas and under 

the covers when the appellant lay on top of the covers, 

between the two children. The victim used anatomical dolls 

when she later testified that the appellant had his hand on 

her vaginal area, under her underpants and was rubbing her. 

She further testified that appellant said she should snuggle 

up to him. The victim came out to the living room and told 

her mother that she could not sleep. She went to the couch 

to lie down and she told her mother what the appellant had 

done to her. The appellant denies that he touched her in her 

vaginal area but did admit rubbing the children's stomach in 

an effort to relax them and put them to sleep. As soon as 

the victim told her mother what had happened, the mother 

gathered up her two children and arranged transportation 

home. 

One witness who was at appellant's apartment that 

evening observed the victim come out of the bedroom. He 

testified that the victim seemed to be "a little distraught," 

and that she complained that the appellant had been rubbing 

her, as the witness stated "just below the belt line." 

Issue one raises the question of whether the conviction 

should be reversed because the District Court failed to sever 

the counts. The appellant argues that the District Court 

committed reversible error when it failed to sever Counts I1 

and 111, even though the appellant's counsel failed to 

request severance before the trial. Appellant's counsel 

proposes that the District Court should have severed the 

counts on its own motion to protect appellant's right to a 

fair trial since sexual abuse cases are highly emotional. 

However, it is the general rule that failure to object to an 

alleged error at trial results in a waiver of the right to 

challenge the error on appeal. Sections 46-20-104 (2), 
46-20-702, MCA; State v. Long (Mont. 1986), 726 P.2d 1364, 43 

St.Rep. 1948. 

The record does not support appellant's claim of 

reversible error. Section 46-11-404 (4) , MCA, states in 

pertinent part: 

If it appears that a defendant . . . is 

prejudiced by a joinder of . . . separate 

charges . . . the court may order 

separate trials . . . or provide any 

other relief as justice may require. 

P7e find no merit in appellant's argument that the failure to 

sever Counts I1 and I11 prejudiced his case by the 

accumulation of evidence leading to his conviction on Count 

This Court set forth in State v. Arthur Eldon Campbell 

(1980), 189 Mont. 107, 615 P.2d 190, three basic prejudices 

that may occur on joinder of similar offenses: (1) the jury 

may consider a defendant facing multiple charges to be a bad 

man and therefore may tend to accumulate the evidence until 

it convicts him of some charge; (2) proof of guilt on one 

count, inadmissible in a separate trial, may be used to 

convict the defendant on a second count; or (3) the defendant 

may wish to testify on his own behalf as to one count, but 

not on another. The first type of prejudice is seldom 

adequate to warrant severance, Campbell, 615 P.2d at 198. 

Here the appellant failed to specify which evidence 

offered as to Count I1 prejudiced his trial on Count 111. In 

his brief, appellant's counsel admits that there was 

sufficient evidence for Count I11 to go to the jury. Here 

the very speculative allegation of prejudice is insufficient 

to reverse the District Court. The appellant has failed to 

meet his burden of demonstrating such prejudice. State v. 

Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 515. 
Neither does the second type of prejudice, which deals 

with using evidence that would have been inadmissible in 

separate trials to gain a conviction, exist in this case. 

This is so because such prejudice is not present where the 

facts and details of the allegations of one count are so 

distinct that the jurors can keep it separate from the other 

count. Orsborn, 555 P.2d at 515. The appellant does not 

claim, and the record fails to indicate, that the two counts 

were so much alike that the jurors were unable to separate 

them. 

Likewise, the appellant fails to claim, and the record 

fails to disclose, that appellant wished to testify about 

only one of the counts to the exclusion of the other. It is 

the District Court Judge who must balance any prejudice of 

the defendant's case against the judicial economy that 

results from joint trials. Campbell, 615 P.2d at 198. This 

Court will not interfere with the District Court's ruling 

where it appears, as it does here, that the District Court 

Judge employed sound discretion and did not abuse his 

judicial prerogatives. 

As to issue two, the failure to dismiss Count 11, we 

find no merit. 

The District Court employed the authority granted it by 

5 46-16-403, MCA, which allows it to dismiss the count at the 

close of the State's case if the evidence is insufficient to 

support a guilty verdict. In State v. White Water (Mont. 

1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666, we 

considered the statute and held: 

[A1 directed verdict should only be 

granted where there is no evidence upon 

which a jury could base a verdict; that 

is, the defendant is entitled to an 

acquittal if reasonable men could not 

conclude from evidence taken in the light 

most favorable to the prosecution that 
guilt has been proved beyond a reasonable 

doubt. (Emphasis added. ) 

See, State v. Matson (Mont. 1987), 736 P.2d 971, 974, 44 

St.Rep. 874, 877, citing White Water, supra. The District 

Court keeping in mind the evidence that has been produced 

along with a notion of "reasonable doubt" is the arbiter that 

must decide whether to dismiss a count. The District Court 

Judge, on motion of appellant's counsel at the close of the 

State's case, considered the adequacy of the State's evidence 

as to each of the three original counts. He granted the 

motion to dismiss Count I, which alleged that appellant had 

pinched the victim on the buttocks sometime during the late 

summer or fall of 1986. The court stated, in the absence of 

the jury : 

[I] listened to that [testimony] quite 

carefully because we have got to a 

pinching and the problem is that these 

[counts] become intertwined and proof of 

one becomes proof of the other. But that 

is not really the way that this works. I 

think that each count has to stand on its 

own. 

It just seems to me that whatever the 

contact was was minimal to be able to 

conclude, standing alone, that Count No. 

1 would be in any way to gratify any lust 

of anybody. It would be such an 

extension of the imagination that you 

would have to take some of the other 

proofs of other acts and I don't think 

that is why they are submitted and I 

think that I'm just going to not burden 

the jury with that one. 

Meanwhile, the court allowed Count I1 to be submitted 

for jury consideration. The court ruled: 

I'm going to let that one go to the jury. 

I think that there is evidence there of 
contact and I guess the last element 

[that of sexual gratification], the 

circumstances could cover. 

Unless a defendant in a criminal case can show that the 

District Court abused its discretion, the ruling will not be 

disturbed. White Water, 634 P.2d at 637. The District Court 

Judge's rationale shows that he made thoughtful decisions and 

did not abuse his discretion. 

Here the District Court Judge allowed testimony of the 

victim relating to the facts of Count 11. The victim 

testified as follows: 

Q. [By Mrs. Loehn] And what happened 

the night that Doug stayed with you? 

A. We went to bed and he said to me, one 

of us to sleep with him and [her brother] 

fell asleep and so I crawled in bed with 

him and he was naked. 

Q. He didn't have any clothes on? 

A. No. 

Q. What did he do? 

A. He rubbed his leg on me. 

Q. Where on you did he rub it? 

A. Right on my leg. 

The appellant later testified that the two children slept in 

their own beds that evening and denied that the victim slept 

in his bed. 

The victim's testimony was such that a reasonable jury 

could conclude that the appellant had subjected the victim to 

sexual contact and that the contact was for appellant's 

sexual gratification. Conviction of a sexual assault may be 

based entirely on the uncorroborated testimony of the victim. 

State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 
351. This rule pertains to child victims as well. In State 

v. A.D.M. (Mont. 1985), 701 P.2d 999, 42 St.Rep. 1186, a 

five-year-old child was held to be competent to testify about 

sexual abuse by her father because her testimony was 

consistent with her prior reports and were supported by 

psychological testimony. Therefore, that child's testimony 

required no corroboration. A.D.M., 701 P.2d at 1000. 

Whether a child is competent to testify is a matter left 

largely to the discretion of the trial court. State v. 

Rogers (Mont. 1984), 692 P.2d 2, 5, 41 St.Rep. 2131, 2135, 

citing State v. Merrill Campbell (1978), 176 Mont. 525, 529, 

579 P.2d 1231, 1233. In the present case the court 

questioned the child victim outside of the presence of the 

jury. Upon completion of the questioning, the court decided 

that the child had the capacity to remember the occurrence 

and the ability to relate her impressions of what occurred. 

Further, the court found that the child had an "understanding 

of the obligations to tell the truth . . . " The District 

Court properly discharged its function of insuring the 

competency of the child victim. In the case at bar, the jury 

might well have found sufficient proof to support Count 11, 

even though they found the appellant not guilty of that 

charge. 

The third issue raises the question of whether the 

prosecutor committed misconduct with her leading questions 

and thereby prejudiced the appellant. 

The appellant points out that under Griffin v. 

California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 

106, prejudice is not presumed but that it must be 

established from the record that a substantial right was 

denied. Here, he alleges that the substantial right is the 

denial of a fair trial because of evidence by the State and 
questioning the eight-year-old victim with leading questions. 

State v. Watkins (1971), 156 Mont. 456, 481 P.2d 689. 

The questioning of a minor child in this type of case 

is a most difficult task for both the prosecutor and defense 

counsel. The prosecutor argues that she was forced to use 

leading questions to elicit facts that the child had related 

previously. Under Rule 611(c), M.R.Evid., leading questions 

are allowed when necessary to develop such testimony. This 

Court's opinion, Bailey v. Bailey (1979), 184 Mont. 418, 421, 

603 P.2d 259, 261, sets forth an exception to the general 

rule against leading questions where there is a child 

involved. In addition, we note that the answers given by the 

child to the questions that are the subject of these 

objections were in favor of the appellant.. We find no 

prejudice. 

The judgment of the District Court is affirmed. 

We concur: I