State v. Eiler

Decision Date27 October 1988
Docket NumberNo. 87-494,87-494
Citation762 P.2d 210,234 Mont. 38,45 St.Rep. 1710
PartiesSTATE of Montana, Plaintiff and Respondent, v. Jerry EILER, Defendant and Appellant.
CourtMontana Supreme Court

Moses Law Firm, Charles F. Moses (argued), Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Betsy Brandborg (argued), Asst. Atty. Gen., Helena, David Rice (argued), Co. Atty., Havre, for plaintiff and respondent.

TURNAGE, Chief Justice.

Defendant Jerry Eiler appeals his jury conviction of sexual assault in violation of Sec. 45-5-502, MCA, in the Twelfth Judicial District, Hill County, Montana. Defendant was charged by information on February 5, 1986, with sexually assaulting his then four-year-old stepdaughter, S.A. Eiler was sentenced to a term of fifteen years with the last seven years suspended. We affirm.

Defendant raises the following issues on appeal:

1. Did the District Court properly determine that the victim, eight-year-old S.A., was competent to testify to incidents which occurred four years earlier?

2. Did the District Court properly allow leading questions by the prosecuting attorney during the deposition of the eight-year-old victim?

3. Did the District Court properly admit evidence of defendant Eiler's prior acts with T.M., his stepdaughter in a previous marriage?

4. Did the District Court properly rule that Dr. Jarvis, a psychologist who examined S.A., was a qualified expert whose testimony was permissible?

5. Did the evidence support the jury conviction of guilty beyond a reasonable doubt?

The victim, S.A., was born on January 21, 1978. In September, 1980, she and her mother Sharon began living with Jerry Eiler, defendant and appellant in this action. Sharon and defendant were married in October, 1981. In the summer of 1982, Eiler had sexual contact with S.A. while she was riding with him on a tractor.

In January, 1983, Sharon went to the State of Washington for treatment of alcoholism, for a period of one month. During this time S.A. stayed with Eiler. While Sharon was absent Eiler had sexual contact with S.A. in the family home on two separate occasions.

Shortly after Sharon returned home from Washington, she divorced Eiler.

By the fall of 1983, S.A. had become disobedient, destructive, and towards other children, abusive. S.A. also began masturbating frequently. This unusual behavior prompted Sharon to take S.A. to Dr. Jarvis, a psychologist, who concluded from his diagnosis that S.A. had been sexually abused. He testified to this at trial.

In February of 1986, Eiler was charged with sexual assault of his stepdaughter. S.A. testified by videotape deposition at trial. It was determined by the District Court at the deposition that S.A. was competent to testify.

S.A. testified that she understood what it meant to tell the truth and realized there were consequences if she failed to tell the truth. The videotaped deposition revealed that she was crying, quite upset, and was hesitant to answer questions concerning specific details of the alleged sexual contacts. The prosecution was allowed to use leading questions, and S.A. testified that the defendant had touched her "private parts" with his hands and had instructed her to touch his "private parts." S.A. testified that she did not tell anyone "because he [Eiler] said he would spank me."

T.M., Eiler's stepdaughter in a previous marriage, testified at trial that Eiler forced her to have intercourse with him regularly from 1973 when T.M. was age nine, until 1977. Eiler and T.M.'s mother, J.E., began living together in 1973, were married in 1975, and were divorced in 1977. Counsel for the defense objected to this testimony of prior acts by T.M., but the objection was overruled. Eiler was convicted by jury verdict of sexually assaulting S.A.

Appellant first contends that S.A., the victim, was not competent to testify. S.A. was four years old when forced to engage in sexual contact with Jerry Eiler and she was eight years old when she testified to the acts. Rule 601, M.R.Evid., is controlling:

Rule 601. Competency in general; disqualification.

(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.

The requirements for determining competence are "capacity of expression and appreciation of the duty to tell the truth." State v. Phelps (Mont.1985), 696 P.2d 447, 453, 42 St.Rep. 305, 312. The rule imposes no age requirement for testifying. State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231; State v. Smith (1984), 208 Mont. 66, 676 P.2d 185. This Court has allowed testimony of five-year-old victims in Phelps, 696 P.2d 447, 42 St.Rep. 305, and State v. A.D.M. (Mont.1985), 701 P.2d 999, 42 St.Rep. 916; and testimony of four-year-old victims in State v. D.B.S. (Mont.1985), 700 P.2d 630, 42 St.Rep. 770, Campbell, 176 Mont. 525, 579 P.2d 1231, and State v. Rogers (Mont.1984), 692 P.2d 2, 41 St.Rep. 2131.

Appellant contends that S.A. did not have the ability to comprehend and relate what occurred. Appellant refers to S.A.'s testimony which indicates she could not clearly remember details of the alleged acts. First, she could not remember where she lived in 1982 and 1983. Second, when the sexual contact occurred, she could not specifically recall whether she was standing or sitting on the tractor. And third, S.A. could not remember what clothes she and Eiler were wearing when the acts took place. However, it has been established by this Court that "children especially four-year-olds are not governed by the clock and calendar as adults are. They are generally at a loss to apply times or dates to significant events in their lives." State v. D.B.S., 700 P.2d at 634.

We have stated that what is important is the capacity to remember the occurrence and the ability of the witness to relate her impressions of what occurred. State v. Howie (Mont.1987), 744 P.2d 156, 44 St.Rep. 1711. S.A.'s testimony is consistent with her prior reports of the incidents and is supported by Dr. Jarvis' testimony. This shows her capacity to remember the occurrence and her ability to relate her impressions. In State v. A.D.M. (Mont.1985), 701 P.2d 999, 42 St.Rep. 916, a five-year-old was held to be competent because her testimony was uniform with her prior reports and was confirmed with the testimony of a psychologist.

Although appellant argues that the inconsistencies in S.A.'s testimony are indicative of her incompetency, we held in Phelps, 696 P.2d at 453, that "the inconsistencies of [the victim's] perception of where he was do not affect his competence." The record shows that S.A. could not answer inquiries of where she lived or what she was doing in 1982 and 1983. However, when asked where she lived or what she was doing when she was four years old, she had a more specific time frame in which she as a child could work and could answer the questions clearly.

In addition, we have ruled that inconsistencies go to the credibility of the evidence, the weight of which is decided by the jury. Rogers, 692 P.2d 2, 5; State v. Shambo (1958), 133 Mont. 305, 322 P.2d 657, 659.

Witness competency is within the discretion of the trial court. D.B.S., 700 P.2d at 636; Phelps, 696 P.2d at 453; Rogers, 692 P.2d at 5. The judge in this case did not abuse his discretion in deciding that S.A. understood her duty to tell the truth and had the ability to clearly communicate her accounts of the events in question.

Appellant, though, argues that S.A. did not understand the duty to tell the truth. Counsel for the defendant asked S.A. when she discovered the difference between the truth and a lie. Her response was that she did not know. This question is a difficult question for any adult to answer. It would be even more rare for a child to know when she learned the difference between the truth and a lie.

In order to show that S.A. did not know the difference between the truth and a lie, appellant quoted a portion of S.A.'s deposition.

Q. [By Mr. Rice] Is there a reason for telling the truth?

A. Yes.

Q. What's the reason for telling the truth? (No response) Do you believe in God?

A. Yes.

Q. Okay. And does God have anything to do with you telling the truth?

A. Yes.

Q. What does God have to do with that?

A. I don't know.

In citing this testimony counsel for the defendant contends that S.A. does not know what it means to tell the truth. However, counsel neglected to call attention to the statements made immediately prior to this testimony:

Q. [By Mr. Rice] Okay. Now do you know what it means to tell the truth?

A. Yes.

Q. What does it mean to tell the truth?

A. To tell what really happened.

Counsel also failed to cite the testimony which continued after the referred-to passage in appellant's brief:

Q. Okay. Does God care if you tell the truth?

A. Yes.

Q. And do you wish to please God?

A. Yes.

Q. Okay. What do you think happens if you don't tell the truth?

A. You won't be resurrected.

* * *

Q. Okay. Do you get in trouble for not telling the truth, not telling the truth at school.

A. Yes.

Q. What happens if you don't tell the truth at school?

A. You have to go to detention.

Q. What is detention?

A. You have to stay in in recess.

Q. And do you ever--would you get in trouble at home for not telling the truth?

A. Yes.

Q. What happens if you don't tell the truth?

A. You have to go to bed.

In addition, Dr. Jarvis testified that in his opinion S.A. knew the difference between the truth and a lie.

[By Dr. Jarvis] In my opinion she could clearly distinguish between the truth and a lie.

* * *

Her...

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