No. 90-142 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe, Esq., Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Elizabeth 

Griffing, Assistant Attorney General; Helena, 

Montana 

Patrick L. Paul, County Attorney; Tammy Plubell, 

Deputy County Attorney; Great Falls, Montana 

Submitted on Briefs: November 29, 1990 

Decided: January 28, 1991 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

George Ronald Walters appeals his felony convictions of sexual 

assault and sexual intercourse without consent following a jury 

trial in the Eighth Judicial District, Cascade County. We affirm. 

Walters presents the following issues: 

1. Did the District Court abuse its discretion in determining 

that the four-year-old victim was competent to testify? 

2. Did the District Court improperly conclude that the State 

did not have to prove the reliability of an expert witness's 

testimony concerning the child victim meeting the profile of a 

sexually abused child? 

3. Did the District Court abuse its discretion in allowing 

a police officer to refresh his recollection by reviewing the 

transcript of an interview the officer had with the appellant? 

4. Did the District Court err when it excluded evidence that 

the victim's mother had, as a child, made a complaint of sexual 

abuse against her father? 

5. Did sufficient evidence exist to support the appellant's 

conviction of sexual intercourse without consent? 

6. Did the District Court abuse its discretion in not 

sentencing the appellant under the incest statute, 1 45-5-507, MCA? 

In 1988, the appellant, George Ronald Walters, and his wife, 

Ruth, resided in Great Falls, Montana, as did their son, Rodney 

Walters. Rodney lived with Cindy Cameron and Cindy's three-yearold daughter, K.C. Although Rodney was not the natural father of 
K.C., he considered himself K.C.'s stepfather. K.C., in turn, 

called Rodney ''Dadn and also referred to appellant and Ruth as 

"Grandpa Ronw and "Grandma Ruth.'' 

On December 28, 1988, Rodney, Cindy, and K.C. went to 

appellant and Ruth's home to do laundry. While there, Cindy and 

Rodney decided to go to a movie, which began around 9:00 p.m. 

Cindy and Rod left K.C. with Ruth; appellant was not home at this 

time. Prior to departing for the movie, Cindy dressed K.C. in a 

nightgown and panties and prepared her for bed. 

Appellant returned home shortly after Rodney and Cindy had 

departed. Because Ruth was not feeling well and had to arise early 

the next day to go to work, she asked appellant to watch K.C. until 

Rodney and Cindy returned. Ruth then retired to her separate 

bedroom and closed her bedroom door, although Ruth remained awake 

and recalled hearing activity in the house until 11:15 p.m. 

Ruth testified she left her bedroom and checked on appellant 

and K.C. on two occasions that evening, once at around 11:30 p.m. 

and once at around 12:OO a.m. On the first occasion, Ruth noticed 

that K.C. was not in the bedroom where she had instructed appellant 

to put her. She then checked appellant's bedroom; the door was 

open and the room was dark and quiet. Ruth concluded that 

appellant and K.C. were asleep in appellant's bedroom, and returned 

to her bedroom. On the second occasion, Ruth testified that she 

got up and noticed that everything appeared the same; appellant's 

bedroom was dark and quiet. 

3 
Rodney and Cindy returned from the movie at about 12:15 a.m. 

Upon entering the house, Rodney went into a nearby bathroom, and 

Cindy proceeded to the living room, where she expected to find K.C. 

sleeping on the couch. When Cindy did not find K.C. in the living 

room, she proceeded down the hallway to Ruth's bedroom. In the 

hallway, Cindy was greeted with a hug by an excited K.C. K.C. then 

pulled up her nightgown, revealing that she was no longer wearing 

her panties. Cindy assumed that K.C. left her panties in a 

bathroom, and asked her to retrieve them; K.C. responded, "no. " 

Cindy again asked K.C. to get her panties and K. C., once again, 

refused and told Cindy that Grandpa Ron had removed her panties and 

had ''tickled her with his pee." 

Shortly thereafter, Rodney appeared from the bathroom, and 

the visibly-shakened Cindy requested that the three go downstairs 

in the laundry room and talk. Upon Cindy's request, K.C. repeated 

to Rodney and Cindy that Grandpa Ron had removed her panties and 

"tickled her with his pee." Rodney then went upstairs, woke up his 

mother, Ruth, and asked her what happened. 

Cindy and K.C. returned upstairs to the living room, where 

they were joined by Rodney and Ruth. Cindy asked Ruth to find 

K.C.'s panties. Upon looking for the panties, Ruth entered 

appellant's bedroom, and found the panties in his bed. Ruth gave 

the panties to Cindy. K.C. then repeated her allegations to Ruth, 

Rodney and Cindy, and added that Grandpa Ron had also "stuck his 

pee in her mouth and went like that," gesturing an in-and-out 

4 
movement with her finger in her mouth. K.C. also stated that l*it 

got small and big." 

Rodney then confronted appellant with K.C.Is allegations; 

appellant was in a bathroom located close to his bedroom at this 

time. Appellant responded with further questions and never denied 

the allegations; he stated that he was tired and wanted to return 

to bed. 

Rodney returned to the living room, and with Cindy and K.C., 

gathered their belongings and went outside to their car. Rodney 

then briefly returned to the house where he again confronted 

appellant about K.C.Is allegations before leaving. 

Confused and upset, Rodney, Cindy, and K.C. drove to the home 

of Cindy's sister to use a telephone; it was now in the early 

morning hours of December 29, 1988. While there, Cindy telephoned 

her parents, who advised her to immediately take K.C. to the 

hospital for a physical examination. Rodney and Cindy complied 

with this advice, and took K.C. to the Montana Deaconess Medical 

Center Emergency Department following the phone call. There, Dr. 

Nora Gerrity, a pediatrician, observed that K.C. had redness and 

swelling around her vagina, which was consistent to frictional 

trauma associated with sexual contact. Dr. Gerrity testified that 

such redness around the vagina could not have been caused by an 

infection or a self-inflicted act. 

While K.C. was being examined by Dr. Gerrity, Police Detective 

Robert Dykemen arrived at the hospital and interviewed Rodney and 

5 
Cindy concerning the incident. The following day, December 30, 

1988, Dykemen tried to interview K.C., but she refused to talk with 

him. Additionally, on January 2, 1989, Dykemen interviewed 

appellant about the incident. Dykemen testified that appellant 

indicated more than once during the interview that he was feeling 

"bad and ashamed, It that l1it may have happened, and that he 

generally felt guilty about the incident. 

Irene Johnson, a social worker for the Department of Family 

Services, interviewed K.C. following the incident. Ms. Johnson 

testified that K.C. was a verbal three-year-old girl who was able 

to relate a truthful story. Ms. Johnson also believed that K.C.'s 

mother did not coach K.C. in any way concerning her accounting of 

the incident. Ms. Johnson referred K.C. to Dr. Janet Hossack, a 

psychologist and therapist specializing in child sexual abuse, for 

counseling. 

After working with K.C., Dr. Hossack concluded that K.C.Is 

behavior was consistent with that of a sexually abused child. 

Prior to the incident, K.C. had been toilet-trained and after the 

incident, she not only urinated but defecated on the floor. K.C. 

had been dry during the day and most nights, but after the 

incident, was wet during the day and night. K. C. had been sleeping 

fine in her own bed, but after the incident, had difficulty 

sleeping without her mother. About a month after the incident, 

K. C. began acting out sexually by masturbating, had periods of 

spacing out, experienced temper tantrums, and was increasingly 

6 
hyperactive and irritable. Based on K.C.Is actions and accounting, 

Dr. Hossack believed that K.C. had been sexually abused. Dr. 

Hossack also noted that a three- to four-year-old child is 

incapable of fabricating such an incident. 

On March 14, 1989, appellant was charged by information with 

sexual assault and sexual intercourse without consent in violation 

of 88 45-5-502, and -503, MCA. The information alleged that 

appellant had subjected K. C. to sexual contact by rubbing his penis 

against her vaginal area and to sexual intercourse without consent 

by placing his penis in K.C.Is mouth. 

original counsel for appellant stipulated to the admittance 

of a videotape deposition of K.C., which was taken on December 7, 

1989. On December 11, 1989, however, appellant dismissed his 

original counsel, and obtained new counsel. Upon reviewing the 

videotape deposition, appellant's new counsel objected to the 

admittance of the videotape deposition asserting that K.C. was not 

a competent witness. A competency hearing was held prior to trial 

on January 15, 1990. The District Court, after examining K.C. and 

Dr. Hossack, determined that K. C. was a competent witness, and held 

K.C.Is videotape deposition admissible. 

On the videotape, K.C. testified that she understood what it 

meant to tell the truth, and that there were consequences if she 

failed to tell the truth. Although K.C. displayed some confusion 

and inconsistency during parts of her videotape deposition, she 

accurately responded to questions pertaining to her age, name, and 

7 
colors in the room. Additionally, K.C. responded to questions with 

regard to the incident. 

Following the jury trial, on January 16, 1990, appellant was 

found guilty of sexual assault and sexual intercourse without 

consent. On February 22, 1990, the District Court sentenced 

appellant to twenty years imprisonment for sexual assault with ten 

years suspended, and thirty-five years imprisonment for sexual 

intercourse without consent with ten years suspended, both of these 

sentences to run consecutively. From this judgment, appellant 

appeals. 

1. Did the District Court abuse its discretion in determining 

that the four-year-old victim was competent to testify? 

Montana Rule of Evidence 601 provides: 

(a) General rule competency. Every person is 

competent to be a witness except as otherwise 

provided in these rules. 

(b) Disqualification of witnesses. A person 

is disqualified to be a witness if the court 

finds that (1) the witness is incapable of 

expressing himself concerning the matter so as 

to be understood by the judge and jury either 

directly or through interpretation by one who 

can understand him or (2) the witness is 

incapable of understanding the duty of a 

witness to tell the truth. 

"Witness competency is within the discretion of the trial court.I1 

State v. Eiler (1988), 234 Mont. 38, 43, 762 P.2d 210, 214 

(citations omitted). "The requirements for determining competence 

are Icapacity of expression and appreciation of the duty to tell 
the truth. In Eiler, 234 Mont. at 42, 762 P.2d at 213 (citations 

omitted). Here, the District Court committed no error because it 

methodically and carefully determined, in a competency hearing 

before the trial, that K.C. was capable of expressing herself and 

that she appreciated the duty to tell the truth. 

Appellant argues that the District Court erred by relying 

solely on the information concerning K.C.Is ability to communicate 

and to tell the truth, which was disclosed during the competency 

hearing on the morning of the trial. Appellant contends that the 

court should have reviewed K.C.'s videotape deposition, which 

exhibited some inconsistencies in K.C.Is testimony, to determine 

her competency. Appellant's argument lacks merit. Inconsistencies 

in a witness's testimony are not matters of competency, but rather, 

matters of credibility. And, evaluating the credibility of a 

witness falls strictly within the province of the jury. State v. 

Newman (1990), 242 Mont. 315, 321, 790 P.2d 971, 974 (citations 

omitted). We therefore hold that the District Court did not abuse 

its discretion when it determined that K.C. was a competent 

witness. 

2. Did the District Court improperly conclude that the State 

did not have to prove the reliability of an expert witness's 

testimony concerning the child victim meeting the profile of a 

sexually abused child? 
In raising this issue, appellant is essentially asking this 

Court to adopt the two-pronged Fr~e test, which states that expert 

witness testimony lacks foundation unless it is established that 

the expert's testimony is based upon well-recognized scientific 

principles or has gained "general acceptanceI1 in the expert's 

field. Frye v. United States (D.C. Cir. 1923), 293 F. 1013, 1014. 

Appellant's argument lacks merit. This Court has expressly 

rejected the ''general acceptancell prong of the Frve test. Barmeyer 

v. Montana Power Co. (1983), 202 Mont. 185, 193, 657 P.2d 594, 598; 

State v. Clark (1988), 234 Mont. 222, 227, 762 P.2d 853, 856. 

Montana Rule of Evidence 702, adopted fifty-four years after 

the Frye decision, provides: 

If scientific, technical, or other specialized 

knowledge will assist the trier of fact to 

understand the evidence or to determine a fact 

in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or 

education may testify thereto in the form of 

an opinion or otherwise. 

In Barmever, we held that the "general acceptanceg1 rule of the Frve 

test was "not in conformity with the spirit of the new rules of 

evidence. . . . 'Unless an exaggerated popular opinion of the 

accuracy of a particular technique makes its use prejudicial or 

likely to mislead the jury, it is better to admit relevant 

scientific evidence in the same manner as other expert testimony 

and allow its weight to be attacked by cross-examination and 

refutation.'" Barmever, 202 Mont. at 193-94, 657 P.2d at 598 

(citations omitted). Here, Dr. Hossackls testimony was neither 
prejudicial nor misleading. And, appellant had the opportunity to 

attack the weight of Dr. Hossackls testimony through crossexamination. 

Appellant further argues that besides the "general acceptancet8 

prong, the remaining prong of the Fr~e test requires a threshold 

determination of reliability of expert testimony to novel areas of 

scientific expertise, citing United States v. Downing (3d Cir. 

1985), 753 F.2d 1224, 1237-39. Appellant asserts that expert 

testimony concerning sexual abuse of children is a novel area in 

Montana. This Court, however, has recognized and sanctioned expert 

testimony concerning sexual abuse and specifically has allowed 

expert testimony concerning a child fitting the profile of a 

sexually abused child, and thus, this area is not a novel area of 

scientific expertise. State v. Donnelly (Mont. 1990) , 798 P. 2d 

89, 93, 47 St.Rep. 1600, 1604. We therefore hold that the District 

Court committed no error by allowing Dr. Hossackls testimony 

without requiring a threshold determination of the reliability of 

her testimony. 

3. Did the District Court abuse its discretion in allowing 

a police officer to refresh his recollection by reviewing the 

transcript of an interview the officer had with the appellant? 

Prior to testifying Officer Dykeman reviewed a transcript of 

his interview with the appellant, which occurred on January 2, 

1989, for the purpose of refreshing his memory; the transcript 

11 
was not introduced into evidence. Appellant asserts that the 

District Court erred by allowing Officer Dykeman to refresh his 

recollection of the interview by reviewing the transcript because 

the original audio tapes of the interview were erased by the police 

department for economic reasons, and these tapes were the best 

evidence. We disagree. Montana Rule of Evidence 612 allows a 

witness to refresh his or her memory by reviewing a writing prior 

to or during their testimony. Furthermore, the best evidence rule 

concerns matters of admissibility. Here, the best evidence rule 

is inapplicable because the admissibility or inadmissibility of the 

writing does not affect the writing's availability for the use of 

refreshing a witness's memory. See Johnson Equipment, Inc. v. 

Nielson (Idaho 1985), 702 P.2d 905, 908. As long as the writing 

is not introduced into evidence, and here it was not, a witness may 

refresh his recollection for the purpose of testifying. State v. 

LaFreniere (1973), 163 Mont. 21, 25-27, 515 P.2d 76, 78-80. We 

therefore hold that the District Court did not abuse its discretion 

in allowing the police officer to refresh his recollection of the 

interview by reviewing the transcript. 

4. Did the District Court err when it excluded evidence that 

the victim's mother had, as a child, made a complaint of sexual 

abuse against her father? 

Montana Rule of Evidence 402 provides, in pertinent part, that 

"[all1 relevant evidence is admissible. . . . Montana Rule of 

12 
Evidence 401 defines relevant evidence as, "evidence having any 

tendency to make the existence of any fact that is of consequence 

to the determination of the action more probable or less probable 

than it would be without the evidence. Relevant evidence may 

include evidence bearing upon the credibility of a witness or 

hearsay declarant." 

It is within the discretion of the trial court to determine 

issues of admissibility, and the trial court's ruling will stand 

upon review unless the record indicates that the trial court abused 

its discretion. State v. Crazy Boy (1988), 232 Mont. 398, 402, 757 

P.2d 341, 343 (citations omitted). 

Here, the District Court found that Cindy's accusations of 

sexual abuse against her father (K.C.'s maternal grandfather) was 

irrelevant to the case at hand, and thus, inadmissible. Appellant, 

however, asserts that this evidence supports his theory that on the 

night of the incident, K.C. was asleep and was recalling a past 

alleged incident of sexual abuse committed by her maternal 

grandfather through a dream. Upon being awakened by her mother's 

return from the movie, K.C. confused her dream with appellant, and 

wrongly accused appellant as the assailant. 

Appellant's theory is unfounded. Although Ruth testified that 

she assumed K.C. was asleep when she twice observed that appellant's bedroom was dark and quiet the night of the incident, the 

record is void of any evidence to support appellant's theory that 

K.C. was dreaming of a past alleged sexual abuse incident involving 

13 
her maternal grandfather. We therefore hold that the District 

Court did not abuse its discretion when it determined that this 

evidence was irrelevant and inadmissible. 

5. Did sufficient evidence exist to support the appellantls 

conviction of sexual intercourse without consent? 

The standard for reviewing issues concerning sufficiency of 

the evidence is Itwhether, after viewing the evidence in the light 

most favorable to the prosecution, anv rational trier of fact could 

have found the essential elements of the crime beyond a reasonable 

doubt." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 

2781, 2789, 61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 

1981), 631 P.2d 1273, 1278-79; State v. Geyman (1986), 224 Mont. 

194, 195-96, 729 P.2d 475, 476,; State v. Gilpin (1988), 232 Mont. 

56, 68, 756 P.2d 445, 451; and State v. Kao (Mont. 1990), P. 2d 

, , 47 St.Rep. 2100, 2102. Appellant asserts that the record 

lacked sufficient evidence to convict him of sexual intercourse 

without consent. 

Section 45-2-101(61), MCA, provides, in pertinent part, that 

lllSex~al intercourse1 means penetration of the vulva, anus, or 

mouth of one person by the penis of another person. . .I1 And, 

5 45-5-503(3) (a), MCA, provides, in pertinent part, that I1without 

consentl1 means that the victim is incapable of consent because he 

or she is less that sixteen years of age. 
Here, the record contains sufficient evidence that appellant 

put his penis in three-year-old K.C.'s mouth, and therefore, 

committed the crime of sexual intercourse without consent in 

violation of 5 45-5-503, MCA. Cindy, Rodney, and appellant's wife 

all testified that K.C. stated to them on the night of the 

incident, appellant had "stuck his pee in her mouth and went like 

that," gesturing an in-and-out movement with her finger in her 

mouth. Furthermore, Dr. Hossack testified that K.C. told her an 

accounting of the incident consistent to the above testimony and 

that K.C. was not capable of fabricating such an accounting. Dr. 

Hossack, as well as Irene Johnson, testified that it was their 

belief that K.C. was credible and was not coached by her mother 

with her accounting of the incident. Furthermore, Officer Dykeman 

testified that in his interview with the appellant concerning the 

incident, appellant indicated more than once that he was feeling 

"bad and ashamed," and that "it may have happened." 

It is important to clarify that during trial, appellant's 

counsel made no objections based on hearsay grounds with regard to 

the testimony of Cindy, Rodney, Ruth, Irene Johnson, and Dr. 

Hossack, which discussed the statements K.C. made to them. In the 

event a hearsay objection had been made, the testimony of Cindy, 

Rodney, and Ruth, although hearsay, would be excepted as an excited 

utterance under Montana Rule of Evidence 803(2). However, no 

hearsay issues were preserved for appeal by proper objections at 

trial with regard to any of the above testimony. We therefore hold 

15 
that sufficient evidence existed to support the appellantls 

conviction of sexual intercourse without consent. 

6. Did the District Court abuse its discretion in not 

sentencing the appellant under the incest statute, 5 45-5-507, MCA? 

On January 16, 1990, a jury found appellant guilty of one 

count of sexual assault and one count of sexual intercourse without 

consent as charged. On February 22, 1990, the District Court 

sentenced appellant to twenty years imprisonment for sexual assault 

with ten years suspended, and thirty-five years imprisonment for 

sexual intercourse without consent with ten years suspended, both 

of these sentences to run consecutively. Appellant argues that 

because it was recognized during trial that he and K.C. had a 

grandparent-grandchild relationship, he should have been sentenced 

under the incest statute, 5 45-5-507, MCA. 

Appellantls argument lacks merit, and is a clumsy attempt to 

decrease his prison sentence. Appellant was charged and convicted 

of sexual assault and sexual intercourse without consent, not 

incest. The District Court properly sentenced appellant under the 

sexual assault and sexual intercourse without consent statutes, 

55 45-5-502 and -503, MCA. The fact that a grandparent-grandchild 

relationship between appellant and K.C. was recognized during 

trial, although no blood-line relationship exists here, does not 

serve to alter the charges, convictions or sentences against 
appellant. We therefore find that no error was committed by the 

District Court. 

Affirmed . 

We concur: