State v. French, 87-492
| Decision Date | 23 August 1988 |
| Docket Number | No. 87-492,87-492 |
| Citation | 760 P.2d 86,45 St.Rep. 1557,233 Mont. 364 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Mark FRENCH, Defendant and Appellant. |
| Court | Montana Supreme Court |
Gary E. Wilcox, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., David W. Hoefer, Deputy Co. Atty., Billings, for plaintiff and respondent.
Mark French, the defendant, was convicted of three counts of sexual intercourse without consent by jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County. Defendant appealed. We affirm.
The issues raised on appeal are:
1. Did the District Court err in denying defendant's motion for a mistrial?
2. Did sufficient evidence of penetration exist to sustain defendant's conviction of sexual intercourse without consent?
3. Did the District Court err in denying defendant's motion for a continuance of the trial?
On July 7, 1987, Mark French, the defendant, was convicted under Sec. 45-5-503, MCA, of three counts of sexual intercourse without consent arising out of encounters that occurred over a five year period with his minor stepdaughter. French was sentenced to forty years for each count with the sentences to be served concurrently.
French began living with the victim's mother in December 1980 when the victim was two years old. French married the victim's mother in August 1981 and adopted the victim in December 1981. French lived in the same household with the victim until November 1985 when French and the victim's mother separated.
The victim attended first grade in Billings during the 1985-86 school year. The victim's first grade teacher noticed unusual behavior from the victim and eventually referred the victim to a school counselor. Through meetings with the school counselor, the victim disclosed the encounters that occurred with French. At trial, the victim testified that while French was living with the family, but while her mother was not at home, French would touch her vagina and bottom with his hands and his penis. She further testified that he would place his penis in her mouth and ejaculate.
Supporting the victim's testimony at trial were the testimonies of the school counselor, who holds a Master's degree in counseling and a Bachelor's degree in education; a medical doctor who conducted a physical examination of the victim; the victim's mother; the victim's grandmother; and the victim's teacher. The school counselor, who met with the victim once or twice a week beginning in January 1986, testified that the victim appeared traumatized or abused. The counselor based this opinion on the victim's reaction when inquiring about French's behavior and anything he might have done to her and what the victim was eventually able to tell her about the manner in which French sexually abused her. When inquiring about French, the victim's reaction included assuming a fetal position, rocking, crying, and refusing to allow anyone to touch her. The medical doctor testified that the results of the victim's physical exam was consistent with recurrent anal penetration and that while the vaginal opening was normal size for a girl of that age, the results did not preclude penetration of the perineal area or the vagina.
The victim's grandmother testified that she witnessed French behave peculiarly one afternoon when he came to pick the victim up after the grandmother had been babysitting. Specifically, the grandmother testified that French had been drinking and went to wake the victim from her nap. The grandmother went to check on them and saw French lying across the bed with the victim on top of him giving her a long kiss with his eyes closed while rolling back and forth. French stopped when he noticed the grandmother and then took the victim to the living room area, and apparently believing he was unobserved, kissed her some more, pulled her panties down, patted her bottom, and told her she had a "cute little butt."
The victim's mother testified to occasions when French and she were in bed and French would call her by the victim's name. She further testified that the victim would complain about soreness in her genitalia and rectal areas but did not want her mother to tell French about her complaints. The victim's teacher testified that the victim displayed unusual behavior for a six year old, in that she was very shy, jumpy, skittish and masturbated frequently. The teacher further testified that during one teaching session when the teacher was focusing on "warm fuzzies," things that people do to make you feel good inside, and "cold pricklies," things that people do to make you feel bad or to hurt you, that the victim, who was usually shy and reserved in the classroom, blurted out that her dad gave her cold pricklies every time her mom left the house.
French denied having any type of sexual intercourse with his minor stepdaughter. The jury, after hearing all the testimony, found French guilty of all three counts of sexual intercourse without consent with the victim. French appeals the conviction, raising three issues.
The first issue French raises is whether the District Court erred in denying French's motion for a mistrial.
The District Court, after considering the circumstances, is in the best position to determine whether the responses by the school counselor were bases for a mistrial. When a court exercises its power to nullify a jury's verdict by granting a motion for a mistrial, this "power ought to be used with the greatest caution, under urgent circumstances, and for very plan and obvious causes; ..." State v. Close (Mont.1981), 623 P.2d 940, 945-46, 38 St.Rep. 177, 183 (quoting United States v. Perez (1824), 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165). This Court's function on appeal is to determine whether the District Court abused its discretion by not granting a mistrial. Close, 623 P.2d at 946, 38 St.Rep. at 183.
French argues that the District Court should have granted his motion for a mistrial. French bases this argument on the school counselor's responses to questions by the prosecutor on whether the counselor believed the now eight year old victim was telling the truth. The three questions by the prosecutor that French points to are:
Q. And so the fact that she would tell you things, and then later deny it, did not imply to you that she was lying? A. I have never been convinced that she has ever lied to me.
Q. And so what we really need to get down to is: Do you feel that most of what she said was the truth? A. There is no question in my mind that what she told me was the truth.
Q. Now, did you believe that she was responding accurately or not embellishing when she answered those questions?
French objected to the last of these three questions addressed to the school counselor.
To support his argument, French relies upon State v. Brodniak (1986), 718 P.2d 322, 43 St.Rep. 755 to argue that this Court does not allow an expert witness to testify on whether the expert believes that the witness is telling the truth. In Brodniak, we held that an expert's testimony explaining rape trauma syndrome is permissible, but that the expert could not testify as to whether she believed the witness was telling the truth. Brodniak, 718 P.2d at 327-29, 43 St.Rep. at 758-63. French therefore argues that this is a basis for granting his motion for a mistrial. We disagree.
French fails to acknowledge our more recent decision, State v. Geyman (1986), 729 P.2d 475, 43 St.Rep. 2125. In Geyman we addressed for the first time the admissibility of expert testimony when a child is subject to sexual assault. After assessing the relevant literature and other jurisdictions' treatment of the subject, we held that "expert testimony is admissible for the purpose of helping the jury to assess the credibility of a child sexual assault victim." Geyman, 729 P.2d at 479, 43 St.Rep. at 2131. A child's reaction to being subject to sexual assault of any form may include responses most adults, unfamiliar with the subject, find peculiar. A child may, for example, fail to disclose the defendant's criminal sexual acts immediately and may also oscillate between admitting the abuse and denying it. An expert witness's testimony merely aids the jurors in assessing a child's credibility under such abusive circumstances, but in no way impinges upon the jury's obligation to decide ultimately the victim's credibility. Geyman, 729 P.2d at 479-80, 43 St.Rep. at 2131.
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