State v. Berg

Decision Date11 April 1985
Docket NumberNo. 84-414,84-414
Citation42 St.Rep. 518,697 P.2d 1365,215 Mont. 431
PartiesSTATE of Montana, Plaintiff and Respondent, v. Steven J. BERG, Defendant and Appellant.
CourtMontana Supreme Court

Moses Law Firm, Bruce E. Becker, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Keith Haker, Co. Atty., Miles City, for plaintiff and respondent.

HUNT, Justice.

The appellant, Steven Berg, was charged by information with committing the crime of sexual assault, a felony because the alleged victim was less than 16 years old and the appellant was 3 or more years older. Section 45-5-502, MCA. A jury trial resulted in a conviction, a new trial was denied, and the appellant was sentenced to seven years in Montana State Prison with the last two years suspended. This appeal followed.

We reverse and remand.

The appellant was charged with sexually assaulting a juvenile girl who was babysitting at the home of another by kissing her and removing some of her clothes. According to the girl's testimony, she fled to a bathroom, the appellant followed and upon pushing the bathroom door open knocked her to the floor. She struck her head and was rendered unconscious. Upon awakening she was naked and he was on top of her.

Three issues are presented for review:

1. Whether the District Court erred in allowing a certain witness to testify as an expert under Rule 702, Mont.R.Evid.

2. Whether the District Court erred in striking the testimony of a certain witness because the witness was an alibi witness and the defense did not give the prosecution the required notice of intent to rely on alibi witness testimony under § 46-15-301(2), MCA.

3. Whether the District Court erred in allowing a witness to testify as to prior crimes, wrongs, or acts under Rule 404(b), Mont.R.Evid., without notice to the defendant of intent to use such evidence as required by State v. Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-964.

The appellant argues that the District Court erred in allowing a certain witness to testify as an expert when the witness was not qualified. The appellant also argues that the District Court erred in allowing the jury to determine if the witness was qualified as an expert.

A witness may be qualified as an expert by knowledge, skill, experience, training, or education. Rule 702, Mont.R.Evid. The determination that a witness is an expert is largely within the discretion of the trial judge and such determination will not be disturbed on appeal absent a showing of abuse of this discretion. Goodnough v. State (Mont.1982), 647 P.2d 364, 369, 39 St.Rep. 1170, 1175. Here we find that the witness was qualified as an expert. She was educated, trained, and experienced in a relevant area. She testified that the juvenile fit within the statistical picture of children who had been sexually assaulted. She had counseled the juvenile for some time, she was a certified psychologist, she had a doctorate in psychology, and she had training and experience.

The appellant claims that the District Court erred in leaving the qualification of the expert to the jury for determination. We disagree. After the appellant had objected that the witness was not qualified the court stated, "Well, the court is going to permit her to testify. If the jury doesn't believe she is qualified--well that will be up to the jury to decide." We find that the District Court made the determination that the witness was qualified when it permitted the witness to testify. The District Court stated afterwards that the jury could determine the degree of the witness's qualification as an expert and weigh the testimony accordingly. This is proper. The degree of a witness's qualification affects the weight rather than the admissibility of the testimony. Little v. Grizzly Mfg. (Mont.1981), 636 P.2d 839, 843, 38 St.Rep. 1994, 2000. We hold that the District Court did not err in allowing this witness to testify.

The appellant next raises the issue whether the District Court erred in striking the testimony of an alibi witness when the defense did not give the State the required notice of intent to rely on an alibi defense. If a defendant intends to interpose an alibi defense the defendant shall notify the prosecution of such intent and include the identity of the witness to be called in support thereof. Section 46-15-301(2), MCA. We find that no notice was given in this case.

Here, though, the question turns on whether the witness was actually an alibi witness. The appellant argues that the witness did not give alibi testimony because the time period covered by the witness testimony did not cover the...

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10 cases
  • State v. Eiler
    • United States
    • Montana Supreme Court
    • October 27, 1988
    ...of the trial court and such determination will not be disturbed on appeal absent a showing of abuse of discretion. State v. Berg (Mont.1985), 697 P.2d 1365, 42 St.Rep. 518; State v. Geyman (Mont.1986), 729 P.2d 475, 43 St.Rep. 2125; In the Matter of J.W.K. (Mont.1986), 724 P.2d 164, 43 St.R......
  • State v. Maier
    • United States
    • Montana Supreme Court
    • March 18, 1999
    ...expert's testimony, not its admissibility. State v. Martin (1987), 226 Mont. 463, 466, 736 P.2d 477, 479 (citing State v. Berg (1985), 215 Mont. 431, 434, 697 P.2d 1365, 1367). Here, Officer Grubb's experience and associated knowledge in handling and shooting an SKS assault rifle (experienc......
  • State v. Clausell
    • United States
    • Montana Supreme Court
    • April 18, 2001
    ...expert's testimony, not its admissibility." State v. Martin (1987), 226 Mont. 463, 466, 736 P.2d 477, 479 (citing State v. Berg (1985), 215 Mont. 431, 434, 697 P.2d 1365, 1367). ¶ 22 Clausell relies on In re K.H., 1999 MT 128, 294 Mont. 466, 981 P.2d 1190, in urging us to distinguish betwee......
  • McCarty v. State
    • United States
    • New Mexico Supreme Court
    • September 27, 1988
    ...at a place other than the place where such offense was committed.), cert. granted, 301 Or. 338, 722 P.2d 737 (1986); State v. Berg, 697 P.2d 1365, 1367 (Mont.1985) ("An alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so remo......
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