State v. Henderson

• Decision Date: 07 July 1994
• Docket Number: No. 93-264,93-264
• Citation: 877 P.2d 1013,265 Mont. 454
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bill J. HENDERSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1013

877 P.2d 1013

265 Mont. 454

STATE of Montana, Plaintiff and Respondent, v. Bill J. HENDERSON, Defendant and Appellant.

No. 93-264.

Supreme Court of Montana.

Submitted on Briefs Feb. 17, 1994.

Decided July 7, 1994.

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for appellant.

Joseph P. Mazurek, Atty. Gen., Barbara Harris, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Missoula, for respondent.

GRAY, Justice.

Bill Henderson was convicted of accountability for incest and sexual intercourse without consent in the Fourth Judicial District Court, Missoula County. He correctly asserts error in the District Court's refusal to grant a directed verdict on the accountability for incest charge and its admission of expert testimony. We reverse and remand.

Bill Henderson (Henderson) was the stepfather of A.C., D.C., and B.C., the natural children of his wife, Stacey Henderson. The children lived with the couple until moving to Alaska to live with their maternal grandparents in December of 1984.

In June of 1985, the children's grandmother discussed the topic of sexual abuse with A.C. and asked if she had ever been sexually abused. A.C. responded that she had been abused by Henderson. The next day, the grandmother took A.C. to Anne Drake, a family therapist. A.C. repeated her sexual abuse allegations and Drake contacted the Alaska Division of Family and Youth Services, which initiated a criminal investigation. During the investigation, the children recounted acts of simulated sexual intercourse between A.C. and her brothers and acts of sexual intercourse between Henderson and A.C.

The State of Montana (State) charged Henderson with accountability for incest and sexual intercourse without consent; he was convicted of these offenses on June 10, 1988. Henderson failed to appear for sentencing and a bench warrant was issued. Henderson was apprehended four and one-half years later on December 31, 1992.

In a written judgment dated March 19, 1993, the District Court sentenced Henderson to consecutive terms of incarceration totaling sixty years and recommended that Henderson not be eligible for parole. The parole board notified the District Court that the language in the judgment did not prevent Henderson from being paroled and, on April 9, 1993, the District Court entered an amended judgment precluding parole or participation in a supervised release program. Additional facts are included in our discussion of the issues.

Did the District Court abuse its discretion by denying Henderson's motion for a directed verdict of acquittal on the accountability for incest charge?

The State charged that Henderson "knowingly before and during the commission of the offense of incest with the purpose to promote such commission solicited [B.C.] and [D.C.] to have sexual contact with their sister [A.C.]." (Emphasis added.) This charge stemmed from the children's accounts of incidents where Henderson made D.C. and B.C. remove their clothes, lie on top of the naked A.C., and "move up and down." While the children performed these simulated sex acts, Henderson masturbated nearby. At the close of the State's case, Henderson moved for a directed verdict of acquittal on the accountability charge. The District Court denied the motion and the jury found Henderson guilty of the offense.

The grant or refusal of a directed verdict is within the trial court's discretion. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 413. A directed verdict is appropriate only where there is no evidence upon which a trier of fact could base a guilty verdict. State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 974.

Henderson argues that the District Court erred in denying his motion because the physical contact between the children did not constitute incest and, as a result, he cannot be convicted of accountability for that offense. We agree.

A person is legally accountable for the conduct of another when:

either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.

Section 45-2-302(3), MCA. A charge of accountability under § 45-2-302(3), MCA, must arise from the commission of an underlying offense. See Downing, 783 P.2d 412, 414. The underlying offense here was the alleged incest involving A.C. and her brothers. Thus, the District Court properly denied Henderson's motion for a directed verdict if the State produced evidence upon which a jury could find that the acts of simulated intercourse between A.C. and her brothers constituted the offense of incest.

Section 45-5-507(1), MCA, states in relevant part: "A person commits the offense of incest if he knowingly ... has sexual contact as defined in 45-2-101 with an ancestor, descendant, a brother or sister ..., or any stepson or stepdaughter." Sexual contact is "any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party." Section 45-2-101(60), MCA. This definition of sexual contact requires that either the person performing the touching or the person being touched engage in the touching for the purpose of sexual arousal or gratification. Therefore, the State was required to introduce evidence from which the jury could find that one of the children engaged in these simulated sex acts for the purpose of sexual arousal or gratification.

The State's evidence did not establish that the children engaged in the intimate touching for this purpose. Indeed, the State's witnesses established the opposite; the children were angry because of the coerced acts, considered the acts embarrassing, and did not want to participate in the acts. We conclude that the State failed to introduce evidence on which the jury could find that the children committed the offense of incest and, therefore, Henderson could not be legally accountable for that offense under § 45-2-302(3), MCA.

The State argues that the evidence established accountability for incest pursuant to § 45-2-302(1), MCA. We observe, however, that the State framed the accountability for incest charge using the language of § 45-2-302(3), MCA, and, in its argument opposing the motion for a directed verdict, the State clearly stated that the charge was based on subsection (3) of the statute. It is axiomatic that a party may not change the theory on appeal from that advanced in the district court. Donnes v. State ex rel. Superintendent of Public Instruction (1983), 206 Mont. 530, 537, 672 P.2d 617, 621. This principle is especially important in criminal prosecutions where the State must inform the defendant of the nature of the criminal charges so the defendant may present a defense. State v. Sanderson (1985), 214 Mont. 437, 453-54, 692 P.2d 479, 488. We decline to address the merits of this argument.

Absent evidence that the offense of incest was committed, there was no evidence upon which the jury could base a verdict of guilty on the accountability for incest charge. We hold, therefore, that the District Court abused its discretion in denying Henderson's motion for a directed verdict of acquittal on that charge.

Did the District Court abuse its discretion in admitting the testimony of Anne Drake?

Anne Drake began counseling the children to address emotional problems associated with their move to Alaska. Her practice consisted primarily of family and marital counseling. She began counseling the children regarding the alleged sexual abuse, however, following A.C.'s disclosure to her grandmother in June of 1985.

During trial, the State offered Drake as an expert witness to testify to the validity of the children's allegations of sexual abuse and A.C.'s statements identifying Henderson as the perpetrator. Over Henderson's objection, the District Court accepted Drake as an expert witness and admitted her testimony.

The admissibility of evidence rests within the discretion of the trial court and is reviewed only for a manifest abuse of that discretion. State v. Van Pelt (1991), 247 Mont. 99, 104, 805 P.2d 549, 552. A party's assertion of error "must stand or fall on the ground relied on by the trial court." State Dep't of Highways v. DeTienne (1985), 218 Mont. 249, 256, 707 P.2d 534, 538.

A. Drake's testimony regarding the validity of the children's statements.

The parties argue for and against the retroactive application of cases determining the necessary qualifications for an expert witness on child sexual abuse which were decided between the 1988 trial of this matter and Henderson's sentencing in 1993. Henderson argues for application of State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, and State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d 1293. Application of Scheffelman would mandate a conclusion that Drake did not possess the needed qualifications for expert witness status and, on that basis, that the District Court erred by admitting her testimony regarding the validity or credibility of the children's statements. The State argues against application of those cases; according to the State, State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475, should be applied to affirm the District Court's admission of Drake's testimony.

The parties' arguments relate to whether Drake was qualified as an expert on child sexual abuse to offer an opinion on the credibility of the children's statements. Our decision, however, addresses the issue raised by Henderson's objection at trial. That objection, although somewhat ambiguous, essentially was that Drake's opinion on the validity of the children's...