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 JusticeJ. A. Turnage delivered the Opinion of the Court. GeorgeRonaldWalters appealshis felonyconvictions 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 theDistrict 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 officerhad 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 sentencingtheappellant 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 ofK.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 "GrandmaRuth.'' 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. BecauseRuthwasnot feeling well and had toarise early thenext day togo towork, sheasked appellant towatch 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 thatK.C. wasnot in thebedroomwhere shehad 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 inappellant'sbedroom, 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. 3Rodney and Cindy returned from the movie at about 12:15 a.m. Upon entering the house, Rodney went into a nearby bathroom, and Cindyproceeded to the living room, where sheexpected to findK.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, Cindywas greetedwith ahug 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 thatGrandpa Ronhad removedherpanties and had ''tickledher 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 "tickledherwithhispee." Rodney thenwent 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 thepanties to Cindy. K.C. then repeated her allegations toRuth, 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 4movement 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 thehome 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. WhileK.C. wasbeing examinedby Dr. Gerrity, PoliceDetective Robert Dykemen arrived at the hospital and interviewed Rodney and 5Cindy concerning the incident. The following day, December 30, 1988,Dykementried to interviewK.C., but sherefused to talkwith him. Additionally, on January 2, 1989, Dykemen interviewed appellant about the incident. Dykemen testified that appellant indicatedmore than once during the interview that he was feeling "bad and ashamed,It that l1itmay 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 alsobelieved that K.C.'s mother did not coach K.C. in any way concerningher 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,waswet during theday 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 6hyperactive and irritable. Based onK.C.Is actionsand 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, appellantwas charged by informationwith sexual assaultand sexual intercourse without consent in violation of 88 45-5-502, and -503, MCA. The information alleged that appellanthad subjectedK. C. to sexual contactby rubbinghispenis againsthervaginal 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 admittanceof thevideotape deposition asserting that K.C. wasnot a competentwitness. A competencyhearingwas held prior to trial

on January 15,1990. TheDistrict Court, after examiningK.C. and Dr. Hossack,determinedthatK.C. was a competentwitness,and held K.C.Is videotape deposition admissible. On thevideotape, 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 toher age,name, and 7colors intheroom. Additionally,K.C. responded toquestionswith 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 twentyyears imprisonment for sexual assaultwith ten years suspended, and thirty-five years imprisonment for sexual intercourse without consentwith tenyears suspended,both of these sentences to run consecutively. From this judgment, appellant appeals.

1. Did theDistrict Court abuse its discretion in determining that the four-year-old victim was competent to testify? Montana Rule of Evidence 601provides: (a) General rule competency. Everyperson 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 concerningthematter so as to be understood by the judge and jury either directly or through interpretationby 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

(citationsomitted). "Therequirements for determining competence

are Icapacity of expression and appreciation of the duty to tellthe 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 concerningK.C.Is ability to communicate and to tell the truth, which was disclosed during the competency hearing on themorning 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 lacksmerit. Inconsistencies inawitness'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. Statev. 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. Fryev. United States (D.C. Cir. 1923), 293 F. 1013, 1014. Appellant's argument lacks merit. This Court has expressly rejectedthe ''general acceptancellprong of theFrvetest. Barmeyer

v. Montana PowerCo. (1983), 202Mont. 185, 193, 657P.2d 594, 598; Statev. Clark (1988), 234 Mont. 222, 227, 762 P.2d 853, 856. Montana Rule of Evidence 702, adopted fifty-fouryears after the Frye decision,provides: Ifscientific, technical,or otherspecialized knowledge will assist the trier of fact to understand the evidence or todetermine 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. InBarmever,weheld that the "generalacceptanceg1 ruleof theFrve 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. Hossacklstestimony was neitherprejudicial normisleading. And, appellanthad the opportunityto attack the weight of Dr. Hossackls testimony through crossexamination. Appellant furtherarguesthat besidesthe "generalacceptancet8 prong, the remaining prong of the Fr~e test requires a threshold determination of reliability of expert testimonytonovel 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. ThisCourt, however, has recognizedand sanctionedexpert 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, 47St.Rep. 1600, 1604. We thereforehold that theDistrict 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 officerhad 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 11was not introduced into evidence. Appellant asserts that the District Court erred by allowing Officer Dykeman to refresh his recollection of the interviewby reviewing the transcript because theoriginal audio tapes of the interviewwere erasedby thepolice 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, thebest evidence rule

concerns matters of admissibility. Here, the best evidence rule is inapplicable because theadmissibilityor 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 isnot introduced into evidence,and here itwas not,awitnessmay refresh his recollection for the purpose of testifying. Statev. LaFreniere (1973), 163 Mont. 21, 25-27, 515 P.2d 76, 78-80. We thereforehold that theDistrict Courtdid not abuse its discretion in allowing the police officer to refresh his recollection of the interviewby 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 402provides, inpertinentpart,that "[all1 relevant evidence is admissible. 

## . 

# . . Montana Rule of 12Evidence 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 reviewunless therecord indicatesthat the trial courtabused its discretion. Statev. Crazy Boy (1988), 232Mont. 398, 402, 757 P.2d 341, 343 (citationsomitted). 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 athand,and thus, inadmissible. Appellant, however,asserts that this evidence supportshis 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. confusedher dream with appellant, and wrongly accused appellant as the assailant. Appellant's theory isunfounded. 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. wasdreaming of apast alleged sexual abuse incident involving 13her 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 intercoursewithout consent? The standard for reviewing issues concerning sufficiency of the evidence is Itwhether,after viewing the evidence in the light most favorableto theprosecution,

## anv rational trier of fact could have found the essential elements of the crimebeyond a reasonable doubt." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61L.Ed.2d 560, 573;restated in Statev. Wilson (Mont. 1981), 631 P.2d 1273, 1278-79; State v. Geyman (1986), 224 Mont. 194, 195-96, 729 P.2d 475, 476,;Statev. Gilpin (1988), 232 Mont. 56, 68, 756 P.2d 445, 451;and Statev. Kao (Mont. 1990), P. 2d



### , 

## , 47 St.Rep. 2100, 2102. Appellant asserts that therecord lacked sufficient evidence to convict him of sexual intercourse without consent. Section 45-2-101(61), MCA, provides, in pertinent part, that lllSex~al intercourse1means 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 consentl1means that the victim is incapable of consent because he

or she is less that sixteenyears 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 "stuckhis 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,OfficerDykeman 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 "itmay have happened." It is important to clarify that during trial, appellant's counsel made no objectionsbased onhearsaygroundswith regard to the testimony of Cindy, Rodney, Ruth, Irene Johnson, and Dr. Hossack, which discussed the statementsK.C. made to them. In the event a hearsay objection had been made, the testimony of Cindy, Rodney,andRuth,although hearsay,wouldbe excepted asan excited utterance under Montana Rule of Evidence 803(2). However, no hearsay issues were preserved for appeal by proper objections at trialwith regard to any of theabove testimony. We thereforehold 15that sufficient evidence existed to support the appellantls conviction of sexual intercourse without consent.

6. Did the District Court abuse its discretion in not sentencingtheappellant under the incest statute,5 45-5-507,MCA? On January 16, 1990, a jury found appellant guilty of one countof sexual assault and onecount of sexual intercourse without consent as charged. On February 22, 1990, the District Court sentenced appellanttotwentyyears imprisonment for sexualassault with ten years suspended, and thirty-five years imprisonment for sexual intercourse without consent with tenyears 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 shouldhavebeen sentenced under the incest statute, 5 45-5-507, MCA. Appellantlsargument lacks merit, and is a clumsy attempt to decreasehis prison sentence. Appellant was charged and convicted of sexual assault and sexual intercourse without consent, not incest. The District Courtproperly 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 againstappellant. We therefore find that no error was committed by the District Court. Affirmed

# .

We concur: