No. 87-305


### INTHE SUPREME COURTOF THE STATE OF MONTANA
1987

STATE OF MONTANA, Plaintiffand Respondent,-vsDOUGLAS ALBERT HOWIE, DefendantandAppellant.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln, TheHonorableRobert Holter, Judgepresiding.
COUNSEL OF RECORD:

ForAppellant: David

### W. Harman,Libby,Montana
For Respondent:

Hon. Mike Greely,Attorney General, Helena,Montana DorothyMcCarter,Asst. Atty. General, Helena SusanLoehn,CountyAttorney,Libby,Montana

Submitted on Briefs: Sept. 3, 1987 Decided: October 13, 1987

Filed: 

### 1

## 31987Mr. JusticeJohnConway Harrisondelivered the Opinion of the Court.

This is an appeal froma juryverdict of sexual assault

on an eight-year-old girl. The matter was tried before the Honorable Robert M. Holter,Nineteenth JudicialDistrict, in and for the County of Lincoln, State of Montana. Appellant

was sentencedto sixyears in the Montana StatePrison. We affirm. Three issues arepresented for our consideration:

(1) Whether the trial court committed reversibleerror in failing to sever Counts I1and 111. (2) Whether the trial court properly refused to dismiss Count 11. 

### (3) Whether the prosecutor committed reversible misconduct inposing leadingquestions to thevictim. 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 subjectsanother 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 theperson 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 sixteenyearsof age. The appellantwas 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 thatappellantmade sexual contact with the girl onNovember 

### 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 (hereinafterreferred to as mother) lived in Libby, Montana with her daughter

(hereinafterreferred 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 appellantwas the mother'sboyfriend. 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 consumedby thepeople at thisparty. At trial the appellant admitted thathe had been drinking beer allday and that when questioned initially he had told a sheriff'sdeputy 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. Themother 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 sourcewas 

### 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 appellanthad 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. Shewent to the couch to lie down and she told her mother what the appellant had done toher. The appellant denies thathe touchedher inher 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 thevictim seemed tobe "a littledistraught," and that she complained that the appellanthad been rubbing her,as thewitness stated "just below thebelt line." Issue one raises thequestion of whether the conviction should be reversed because theDistrict 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; Statev. 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 pertinentpart: 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 facingmultiple 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 thedefendanton 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 I1prejudiced his trialonCount 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 appellanthas failed to meet his burden of demonstrating such prejudice. State v. Orsborn (1976),170Mont. 480,489, 555 P.2d 509, 515.Neither does the second type ofprejudice, 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 judicialprerogatives. As to issue two, the failure to dismiss Count 11,we find nomerit. The District Court employed the authority granted itby 

### 5 46-16-403,MCA,which allows it todismiss the count at the close of the State's case if the evidence is insufficientto support a guilty verdict. In State v. White Water (Mont. 1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666, we considered the statuteand 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 fromevidence taken in the light most favorable to the prosecution thatguilt hasbeen proved beyond a reasonable doubt. (Emphasisadded.) 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 alongwith 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'sevidence 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 becomesproof of the other. But that isnot really theway that thisworks. I think that each counthas 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. 1would 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 jurywith that one. Meanwhile, the court allowed Count I1 to be submitted for 

### jury consideration. The court ruled: I'm going to let that onego to the jury. I think that there is evidence there ofcontact 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 rulingwill not be disturbed. WhiteWater, 634P.2d at 637. TheDistrict Court Judge's rationale shows thathe 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 tobed and he said tome, one of us to sleep withhim and [herbrother] fell asleep and so I crawled in bed with him and hewas naked. Q. He didn't have any clothes on?
A. No. Q. What did he do?
A. He rubbed his leg onme. 

### Q. Where on youdid he rub it?

A. Right onmy leg. The appellant later testified that the two children slept in their own beds that evening and denied that the victim slept inhis bed. The victim's testimony was such that a reasonable jury could conclude that the appellanthad subjected thevictim to sexual contact and that the contact was for appellant's sexual gratification. Conviction of a sexual assaultmay be based entirely on the uncorroborated testimony of thevictim. State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348,351. This rulepertains 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 childwas held to be competentto 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 courtdecided 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 childhad an "understanding of the obligations to tell the truth

# .. . " The District Court properly discharged its function of insuring the competency of the childvictim. In the case atbar, 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 andquestioning the eight-year-oldvictim with leading questions. Statev. Watkins (1971), 156Mont. 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), 184Mont. 418, 421, 603 P.2d 259, 261, sets forth an exception to the general rule against leading questions where there is a child involved. Inaddition,we note that the answers givenby 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