No. 92-052 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

DARYL SCOTT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Broadwater, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leo J. Gallagher, Attorney at Law, Helena, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General; Jennifer 

Anders, Assistant Attorney General, Helena, Montana 

John T. Flynn, Broadwater County Attorney, 

Townsend, Montana 

Submitted: February 2, 1993 

Decided: April 1, 1993 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Daryl Scott (Scott) appeals his conviction for sexual assault 

following a jury trial in the District Court for the First Judicial 

District, Broadwater County. We affirm the conviction. 

The issues raised in this appeal are restated as: 

1. Did the District Court err in refusing to grant Scott's 

motion to dismiss for lack of speedy trial? 

2. Was Scott's right to confrontation denied because the 

District Court allowed the testimony of the victim to be videotaped 

and shown at trial without first requiring the State to make a 

showing of necessity? 

3. Did the filming techniques utilized by the video-camera 

operator prejudice Scott by serving to emphasize the victim's 

testimony and inflame the jury's passion? 

4. Did the District Court err in denying Scott's motion for 

a continuance prior to videotaping the victim's testimony? 

5. Was certain testimony of the victim's therapist, 

regarding the victim's psychiatric symptoms, improperly admitted by 

the District Court? 

6. Did the District Court err by instructing the jury that 

the State was not required to state the time and place of the 

alleged criminal offense with impossible precision? 

In July 1990, the victim, J.R., told her grandmother that 

Scott, the child's stepfather, had sexually assaulted her sometime 

in the fall of 1989. The grandmother relayed these allegations to 

J.R.'s mother. Apparently, the grandmother was not satisfied with 

the course of action taken by the mother. Several weeks later, the 

grandmother filed a report of child abuse with the Broadwater 

County Sheriff's Office. In addition, the grandmother took J.R. to 
see a social worker who interviewed J.R. about the allegations on 

September 14 and 17, 1990. 

At the first interview, J.R. did not specifically tell the 

social worker that Scott had sexually assaulted her. At the second 

interview, J.R. relayed that Scott had sexually assaulted her in 

late September or early October, 1989. Scott was arrested on 

September 27, 1990. 

On October 10, 1990, the State of Montana (State) filed an 

information against Scott charging him with one count of sexual 

assault in violation of 5 45-5-502 (1) and (3), MCA. Scott was 

released from jail on bond on October 19, 1990. A jury trial held 

on June 10 and 11, 1991, resulted in a verdict of guilty. Scott 

was sentenced to twenty years in the Montana State Prison, with ten 

years suspended. In addition, Scott was ordered to complete a 

sexual offenders program upon his release from prison. It is from 

this conviction that Scott appeals. 

Did the District Court err in refusing to grant Scott's motion 

to dismiss for lack of speedy trial? 

Scott contends the prejudice caused to him by the delay 

between his arrest and the time of trial violated his 

constitutional right to a speedy trial. He argues the State failed 

to provide an excuse reasonable enough to overcome the 

constitutional presumption that a delay of the length in this case, 
256 days, prejudiced him. We agree that a delay of 256 days is 

sufficient to trigger inquiry as to whether a defendant's right to 

a speedy trial has been violated. However, we do not agree the 

State failed to overcome the presumption that the delay in this 

case prejudiced Scott. 

Under the Sixth Amendment of the United States Constitution 

and Article 11, Section 24, of the Montana Constitution, defendants 

in all criminal proceedings are guaranteed the right to a speedy 

trial. State v. Hembd (Mont. 1992), 838 P.2d 412, 416, 49 St-Rep. 

788, 790. In ascertaining whether the right to a speedy trial has 

been violated, a sensitive four-part balancing test is analyzed. 

State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 

568 P.2d 162, 163. The factors to be balanced are: the length of 

delay; the reasons for the delay; assertion of the right by the 

defendant; and the prejudice to the defendant. State v. Reynolds 

(1990), 243 Mont. 1, 4-5, 792 P.2d 1111, 1113. 

The length of delay which is "presumptively prejudicial 

depends on the facts of each individual case." State v. Dahms 

(1992), 252 Mont. 1, 12, 825 P.2d 1214, 1220, citing State v. 

Heffernan (lgpl), 248 Mont. 67, 70, 809 P.2d 566, 568. However, we 

have held that a delay of over 200 days will usually trigger the 

full analysis. Dahms, 825 P.2d at 1220-21. In this case, a delay 

of 256 days, all of which was attributable to the State, is 

sufficient to warrant further inquiry. 
Once a delay is sufficient in length to trigger a full speedy 

trial inquiry, a presumption exists that the defendant has been 

denied a speedy trial. Reynolds, 792 P.2d at 1113. At this point, 

"the burden shifts to the state to either offer a reasonable excuse 

for the delay or demonstrate that the defendant was not prejudiced 

by the delay." Revnolds, 792 P.2d at 1113. 

In the case at bar, the State moved twice to continue the 

trial date. The first motion was made on January 23, 1991, and the 

second on April 4, 1991. Scott acquiesced to these continuances 

with the understanding that his right to a speedy trial would be 

preserved. The first continuance was requested because in the 

opinion of Dr. N.M. Campbell, it would not have been in the best 

interests of J.R. to be subjected to any extensive and intensive 

interviewing until she had undergone further psychological 

evaluation and counseling. The second continuance was requested 

because the therapist conducting J.R.'s sexual trauma assessment 

could not make an accurate assessment of J.R.'s ability to testify 

until May 1, 1991. 

In addressing the reasons for the delay, Scott contends the 

State did not offer a reasonable excuse because it delayed 

obtaining counseling for J.R. While the record reveals that J.R. 

did not see a therapist until mid-January 1991, it also reveals the 

reason for the delay was the unavailability of a therapist. 

Testimony elicited from a defense witness reveals that J.R. was on 
a waiting list for approximately four and one-half months before a 

therapist was finally able to work with her. 

In Reynolds, we were confronted with a similar set of facts 

regarding the unavailability of a material witness for the State to 

testify because of emotional instability. ~eynolds, 792 P.2d at 

1114. Like the victim in the instant case, the victim in Reynolds 

required psychological therapy to enable her to testify without 

suffering further psychological damage. We held that the State 

provides a reasonable excuse for the delay when a material witness 

is unavailable to testify. Reynolds, 792 P.2d at 1114. "The State 

is not charged with speedy trial delay when a material witness with 

a 'valid reason1 is not available." State v. Tilly (l987), 227 

Mont. 138, 142, 737 P.2d 484, 487. The unavailability of 

counseling for four and one-half months, and the need to obtain 

such counseling before J.R. would be able to testify, constitutes 

a valid excuse. 

In addressing the third Reynolds factor, the record reveals 

that Scott asserted his right to a speedy trial in a May 22, 1991 

motion to dismiss. Therefore, this prong has been satisfied. 

The final factor to be analyzed is the prejudice to the 

defendant. Where the trial in a criminal proceeding has been 

delayed, three interests of the defendant may be prejudiced. 

Tilly, 737 P.2d at 487. Those interests are: to prevent oppressive 

pretrial incarceration; to minimize the anxiety of the accused; and 

6 . .. 
to limit the possibility the defense will be impaired. Tilly, 737 

P.2d at 487. 

When applied to the facts in this case, we hold Scott's 

interests were not prejudiced by the State's delay in bringing this 

case to trial. First, on October 19, 1990, approximately three 

weeks after his arrest, Scott was released from jail after posting 

bond. The duration of Scott's pretrial incarceration was not 

oppressive. Second, Scott does not contend, nor does the record 

reveal, he suffered undue anxiety or concern. Finally, we do not 

agree with Scott's contention that his defense was impaired by the 

delay. 

Scott argues the record is replete with instances where child 

witnesses could not remember important details thereby impairing 

his defense. However, the record indicates that those details 

which the child witnesses were unableto recall actually benefitted 

the defense. For example, one of the allegations in this case was 

that Scott assaulted J.R. while she was sitting on his lap steering 

the car while other children were present in the car. When one of 

the witnesses was questioned about this, the following testimony 

was elicited: 

Q. Okay. And did [J.R.] or did Daryl let [J.R.] drive 

back from the trip that you are talking about? 

A. I don't remember. 

Furthermore, another witness testified similarly: 
Q. Okay. So you remember all of you being in the back 

seat and [J.R. ] being in the front seat? Do you remember 

[J.R.] ever driving the car? 

A. I am not sure. 

Q. When you say you are not sure, you just don't 

remember or -- 

A. I don't remember. 

We hold the defense was not impaired by the State's delay in 

bringing this case to trial. Furthermore, we hold Scott1 s 

constitutional right to a speedy trial was not violated. 

Was Scott's right to confrontation denied because the District 

Court allowed the testimony of J.R. to be videotaped and shown at 

trial without first requiring the State to make a showing of 

necessity? 

Both the United States and the Montana Constitutions guarantee 

a criminal defendant the right to confront the witnesses against 

him. Amend. VI, U.S.Const.; Art. 11, Sec. 24, Mont-Const. Scott 

alleges his right to confront the key witness against him was 

violated because: (1) the District Court allowed the victim's 

testimony to be videotaped and shown to the jury without a prior 

finding that there was a compelling reason to do so; and (2) 

because he and the jury were deprived of the ability to observe the 

demeanor of the witness in the courtroom. 

Sections 46-15-401 and 46-15-402, MCA (1989) (both repealed 

and recodified as 5 46-16-216, MCA), controlled the admissibility 

and procedural aspects of videotaped testimony in this case. 
For any prosecution commenced under 45-5-502(3) . . . , the testimony of the victim, at the request of such 

victim and with the concurrence of the prosecuting 

attorney, may be recorded by means of videotape for 

presentation at trial. The testimony so recorded may be 

presented at trial and shall be received into evidence. 

The victim need not be physically present in the 

courtroom when the videotape is admitted into evidence. 

Section 46-15-401, MCA (1989). Section 46-15-402, MCA (1989), 

reads: 

(1) The procedural and evidentiary rules of the state of 

Montana which are applicable to criminal trials within 

the state of Montana shall apply to the videotape 

proceedings authorized by this part. 

(2) The district court judge, the prosecuting attorney, 

the victim, the defendant, the defendant's attorney, and 

such persons as are deemed necessary by the court to make 

the recordings authorized under this part shall be 

allowed to attend the videotape proceedings. 

Under the above statutory scheme, a request by a victim of 

sexual abuse, along with the concurrence of the prosecutor, allows 

the videotaping of the victim's testimony for possible introduction 

at trial. If offered, 5 46-15-401, MCA (1989), mandates the 

videotaped testimony be received into evidence. We note that this 

requirement is subject to all applicable rules of evidence. 

Furthermore, 5 46-15-402(2), MCA (1989), preserves a defendant's 

constitutional right to confrontation by allowing him to be present 

at the videotaping proceedings. Scott contends this statute is 

unconstitutional because it does not require the State to make a 

preliminary showing that the victim is unable to testify before the 
jury. However, given the facts in the instant case, the precedent 

relied upon by Scott to support this contention is misplaced. 

In Maryland v. Craig (1990), 497 U.S. -, 110 S.Ct. 3157, 111 

L.Ed.2d 666, and State v. Davis (Mont. 1992), - P.2d -, 49 

St.Rep. 342, the defendants were deniedthe opportunity to confront 

the witnesses against them face-to-face during their testimony. In 

Craiq, the child witness, prosecutor, and defense counsel were 

removed to a separate room, while the jury, judge, and defendant 

remained in the courtroom. Craiq, 110 S.Ct. at 3161. Thereafter, 

the child witness was examined and cross-examined while a one-way 

video monitor recorded and displayed the testimony to those in the 

courtroom. Craiq, 110 S.Ct. at 3161. In Davis, an opaque screen 

was placed between the defendant and two child witnesses. Davis, 

49 St.Rep. at 343. Again, the defendant could not personally 

observe the child witnesses who testified against him. Davis, 49 

St-Rep. at 345. 

Pursuant to Craiq, we held in Davis that before a defendant's 

right to confront the witnesses against him is limited or abridged, 

the district court must make case-specific findings that the 

psychological well-being of the child abuse victim outweighs a 

defendant's right to face his accusers. Davis, 49 St-Rep. at 345. 

However, as mentioned, both of these cases involved denial of the 

right of face-to-face confrontation between the defendant and the 

victim/witness. That fact is not present here. We hold the case- 
specific findings of necessity required under a and adopted in 

Davis are inapplicable to the case at bar. Where the State's 

interest is to protect child witnesses from courtroom trauma 

generally, and not the trauma associated with the presence of the 

defendant, the child "could be permitted to testify in less 

intimidating surroundings . . . . Craiq, 110 S.Ct. at 3169. 

Under the statutory procedure used in this case, Scott was 

entitled to be present at the videotaping of J.R.'s testimony and 

confront his accuser. He chose not to do so. Furthermore, the 

essential elements required by the confrontation clause--physical 

presence, oath, cross-examination, and observation of demeanor by 

the trier of fact (although by video recording)--are present here. 

w, 110 S.Ct. at 3163; Davis, 49 St.Rep. at 345. Accordingly, 

we hold the procedure utilized in this case pursuant to gg 46-15- 

401 and 46-15-402, MCA (19891, did not violate Scott's 

constitutional right to confrontation. 

Did the filming techniques utilized by the video-camera 

operator prejudice Scott by serving to emphasize the victim's 

testimony and inflame the jury's passions? 

On the opening day of trial, Scott objected to the 

presentation of the videotaped testimony to the jury. The District 

Court overruled Scott 's objection. On appeal, Scott argues the 

techniques used by the camera operator created undue sympathy with 

the jury. By placing undue emphasis on the nature of J.R.'s 
testimony by rrzooming inrg when she cried or was otherwise 

distressed, Scott argues the filming techniques prejudiced him. 

Although relevant, and admissible under § 46-15-401, MCA 

(1989), the videotaped testimony could have been excluded by the 

District Court if its probative value was substantially outweighed 

by the danger of unfair prejudice to Scott. Rule 403, M.R.Evid. 

Additionally, the videotaped testimony could have been excluded if 

its admission would have violated any other applicable evidentiary 

rules. Whether the prejudicial effect is outweighed by probative 

value is a matter within the discretion of the trial court. The 

admissibility of such evidence is within the discretion of the 

District Court and will not be disturbed unless there is a manifest 

abuse of discretion. Zeke's Distributing v. Brown-Forman Corp. 

(1989), 239 Mont. 272, 277, 779 P.2d 908, 911. 

The District Court reasoned that the videotape did not inform 

the jurors of something they did not already know (that J.R. was 

crying). Furthermore the record reveals that the camera operator 

was seated in approximately the middle of the back row of the jury 

box. Our own viewing of the tape does not reveal any prejudicial 

filming techniques. We hold the District Court did not abuse its 

discretion in allowing the jury to watch the videotape testimony. 

Regardless of our holding on this issue, Scott urges this 

Court to implement uniform procedures applicable to the videotaping 

of testimony for possible use at trial such as those found in State 
v. Sheppard (N.J. 1984), 484 A.2d 1330, 1349-50. We decline to do 

so. 

IV 

Did the District Court err in denying Scott's motion for a 

continuance prior to videotaping the victim's testimony? 

The day the videotaped testimony of J.R. was to be taken, 

Scott moved for a continuance on the ground that he did not have 

adequate time to prepare for cross-examination of J.R. The 

District Court denied this motion. On appeal, Scott asserts the 

District Court's decision to deny his motion prejudiced his defense 

in two ways. 

First, Scott contends a statement given by J.R. one week prior 

to the time scheduled for her testimony varied from her prior 

statements as to when the assault occurred. Second, Scott argues 

that on the day of testimony, he was unaware that J.R. was 

experiencing psychiatric symptoms in which she saw people who were 

not there, and heard voices, and had discussed the symptoms with 

her therapist. One week later, Scott became aware of the symptoms 

through a report prepared by the therapist. Although he was 

allowed to question the therapist about these symptoms, Scott 

contends he was denied the opportunity to effectively cross-examine 

J.R. on this subject. However, upon receiving the therapist's 

report, Scott did not move to re-open the cross-examination of J.R. 

Whether a continuance should be granted is not a matter of 
right but, rather, is within the sound discretion of the trial 

court. Section 46-13-202(3), MCA; State v. McPherson (1989), 236 

Mont. 484, 487, 771 P. 2d 120, 122. We will not overturn a district 

court's decision to deny a motion for a continuance unless the 

district court abused its discretion. McPherson, 771 P.2d at 122. 

An abuse of discretion is present only when the district court's 

ruling prejudices the defendant. State v. Kirkland (1979), 184 

Mont. 229, 235, 602 P.2d 586, 590. 

In this case, Scott has failed to demonstrate that he was 

prejudiced. As to his inability to cross-examine J.R. about her 

psychiatric symptoms, Scott advances no argument, nor points to 

anything in the record, which demonstrates how his lack of 

awareness of the therapist's report at the time of videotaping 

prejudiced him. Likewise, Scott does not elaborate how J.R.'s 

change in story as to when the assault occurred prejudiced him. To 

the contrary, the record reveals that Scott was able to effectively 

cross-examine J.R. on this subject. Upon cross-examination, J.R. 

reiterated that the assault occurred on a "school day" rather than 

in the summer months as she had told the defense one week before. 

Any variance in J.R. 's story would go to her credibility. 

Evaluation of the credibility of a witness is strictly within the 

province of the jury. State v. Walters (1991), 247 Mont. 84, 90, 

806 P.2d 497, 500. 
For this Court to overturn the District Court's denial of a 

motion for continuance, an abuse of discretion which prejudices the 

defendant must be demonstrated. McPherson, 771 P.2d at 122. Scott 

has demonstrated no such prejudice in this appeal. The District 

Court did not err in denying Scott's motion for a continuance. 

Was certain testimony of J.R.'s therapist, regarding J.R.'s 

psychiatric symptoms, improperly allowed by the District Court? 

Scott claims the District Court improperly allowed J.R.'s 

therapist to bolster her testimony. He contends that by allowing 

the therapist to testify that it is not unusual for victims of 

sexual abuse to hear voices or see things that are not reality, the 

District Court allowed the therapist to vouch for the credibility 

of J.R. Thus, the fact-finding province of the jury was invaded 

because the testimony served to tell the jury that J.R. had in fact 

been assaulted by Scott, and he was the cause of her psychiatric 

symptoms. We disagree. 

Scott relies upon State v. Harris (1991), 247 Mont. 405, 808 

P.2d 453, to support his proposition that an expert witness cannot 

comment on the credibility of an alleged victim. Harris, 808 P.2d 

at 455. However, Scott fails to note that we have allowed expert 

testimony regarding the sometimes puzzling and contradictory 

behavior of children who have been sexually assaulted. Harris, 808 

P.2d at 456. Furthermore, Montana allows "expert witnesses to 
testify directly about the credibility of a victim who testifies in 

a child sexual abuse trial" under certain circumstancs. State v. 

Scheffelman (1991), 250 Mont. 334, 342, 820 P.2d 1293, 1298. Such 

testimony is proper when the child victim testifies, the 

credibility of the child is attacked, and the expert is properly 

qualified. Scheffelman, 820 P.2d at 1298. In this case, the first 

two Scheffelman factors were satisfied. Additionally, Scott did not 

object to the qualifications of the therapist as an expert, nor 

does he argue on appeal the District Court erred in treating her as 

an expert. 

Expert testimony relating to the contradictory behavior, and, 

where appropriate, the credibility of a child victim of sexual 

abuse, will be allowed to enlighten the jury on a subject with 

which most people have no common experience and to assist the 

jurors in assessing the credibility of the victim. State v. 

Donnelly (1990), 244 Mont. 371, 378, 798 P.2d 89, 93. Where the 

expert testimony does not impinge upon the jury's obligation to 

ultimately decide the credibility of the victim, such testimony is 

proper if offered "for the purpose of helping the jury to assess 

the credibility of a child sexual assault victim." Donnellv, 798 

P.2d at 93, citing State v. Geyman (1986), 224 Mont. 194, 200, 729 

P.2d 475, 479. 

Throughout the trial Scott attempted to portray J.R. as a 

child who made up the sexual assault because she was capable of 

seeing people who were not there and hearing voices which were not 

16 
real. However, it was Scott who called the therapist during his 

case-in-chief and opened the door to testimony about these 

psychiatric symptoms. 

In his attempt to impugn J.R., Scott elicited testimony 

regarding J.R.'s psychiatric symptoms and attempted to relate these 

psychiatric symptoms as being caused by two other men and possibly 

by a deceased brother. Scott's theme was clear, to raise a 

reasonable doubt in the minds of the jurors as to whether J.R.'s 

allegations against Scott were true because the child's psychiatric 

symptoms could be related to others. 

Upon cross-examination, the State merely had the therapist 

explain that it was not uncommon for child sexual assault victims 

to suffer psychiatric symptoms which include seeing people and 

hearing voices which are not real. Furthermore, in the therapist's 

opinion, these symptoms were related to Scott, and not to those 

upon whom the defense was attempting to lay blame. Contrary to 

Scott's contention, the testimony of the therapist was not a 

comment on his guilt. 

Given the testimony of the therapist elicited by the defense 

on direct examination, the jury was entitled to be enlightened as 

to the root of these psychiatric symptoms on cross-examination. 

"The right of cross-examination extends not only to all facts 

stated by the witness in [her] original examination, but to all 

other facts connected with them, directly or indirectly . . . . II 
Miles Savings Bank v. Liquin & Swandal (1931), 90 Mont. 513, 521, 

4 P.2d 482, 485. The latitude allowed in cross-examination is 

determined by the district court. State v. Hart (1981), 191 Mont. 

375, 383, 625 P.2d 21, 26. We will not disturb the ruling of the 

district court absent a clear abuse of discretion. Hart, 625 P.2d 

at 26. 

We hold the testimony of the therapist elicited by the State 

on cross-examination did not encroach upon the province of the jury 

to decide for themselves the credibility of J.R. The District 

Court did not abuse its discretion in allowing the crossexamination. 

VI 

Did the District Court err by instructing the jury that the 

State was not required to state the time and place of the alleged 

criminal offense with impossible precision? 

In his final assignment of error, Scott contends Jury 

Instruction No. 13 effectively allowed the State to expand the time 

frame alleged in the information upon which he relied in preparing 

his defense. Instruction No. 13 reads: 

You are instructed that the law does not require that the 

time and place of an alleged criminal act be stated with 

impossible precision, it merely requires that they be 

stated as definitely as possible. 

The District Court found that this instruction did not in any way 

contradict the allegation contained in the information, which read, 

in part: 
[O]n or about late September or early October, 1989, at 

the County of Broadwater, State of Montana, the abovenamed Defendant committed the offense of Sexual Assault, 

a Felony, . . . . 

Scott argues that the State knew three weeks before trial that 

J.R. had changed her story and was alleging the assault occurred in 

the summer of 1989 rather than the fall. Therefore, Scott claims, 

the State was allowed to amend the information in the eleventh hour 

to charge the offense was committed at a different time. This 

argument is without merit. 

At trial, the evidence presented by the State as to when the 

assault occurred was consistent with the information. From the 

record, it is clear that the State in no way attempted to pursue 

any theory which would have placed the assault outside the time 

frame contained in the information. To the contrary, it was Scott 

who presented evidence at trial in an attempt to persuade the jury 

that the assault could not have occurred during this time frame. 

It is within the district court's prerogative to determine 

which jury instructions are necessary. Hembd, 838 P.2d at 415. 

"On review, we determine whether [the] instructions, as a whole, 

fully and fairly present the applicable law of the case." Hembd, 

838 P.2d at 415. We hold the District Court did not err in giving 

this instruction and, as a whole, the jury instructions fully and 

fairly presented the applicable law of the case. 
We determine this case presents no reversible error. The 

conviction is affirmed. 

~/.flzz~ C 

Chief Justice 

We concur: 

Justices