State v. Laird, 86-72

• Decision Date: 09 February 1987
• Docket Number: No. 86-72,86-72
• Citation: 732 P.2d 417,225 Mont. 306
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Kenneth LAIRD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 417

732 P.2d 417

225 Mont. 306

The STATE of Montana, Plaintiff and Respondent, v. Kenneth LAIRD, Defendant and Appellant.

No. 86-72.

Supreme Court of Montana.

Submitted on Briefs Dec. 11, 1986.

Decided Feb. 9, 1987.

Gary E. Wilcox, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Harold F. Hanser, Co. Atty., Billings, Donna Heffington, Deputy Co. Atty., for plaintiff and respondent.

SHEEHY, Justice.

Defendant Kenneth Laird appeals his conviction for sexual intercourse without consent following a jury trial in the Thirteenth Judicial District in and for the County of Yellowstone. We affirm his conviction.

Three issues are raised on appeal:

1. Whether the District Court erred in denying defendant's request to cross examine the State's witnesses on an alleged prior assault made against the victim.

2. Whether the District Court erred in admitting the testimony of the state's expert witness on the probability of sexual assault upon the victim.

3. Whether the District Court erred in admitting as evidence "pornographic" materials found in defendant's apartment.

In March 1985, nine year old Katherine lived with her mother Melissa and two younger sisters in an upstairs room at the Acme Hotel in downtown Billings. The defendant lived with his common law wife a floor beneath them in room No. 15. Defendant and Melissa had known each other on Billings' south side for several months before Melissa moved her family to the Acme. Defendant moved to the Acme a month or so after Melissa's family. Defendant and Melissa were friends, so in the months between defendant's move and the early part of March, defendant visited Melissa several times a week to drink coffee and talk. Melissa's children were often present during these visits.

On Friday, March 8, Katherine was on her way home from school when, as she started up the stairs to her apartment, she saw defendant in the hallway. He coaxed her near to him by offering her candy, then grabbed her by the hand, pulled her into his room, and locked the chain lock on the door. Defendant's wife was not there. Defendant then undressed Katherine and raped her orally, vaginally and rectally. Katherine testified that defendant showed her "dirty" magazines before raping her, telling her that he was going to do to her what the naked people in the magazines were doing. When he finished raping Katherine, defendant told her that if she told on him, he would do it again.

Katherine did not tell anyone what happened for several days. In that period her mother noticed that her daughter had trouble sleeping, was scratching her vaginal area and made frequent trips to the bathroom. Around 1:30 on Sunday morning, March 10, Katherine, who was sleeping near her mother, (who was watching a late movie on t.v.), woke crying. When her mother asked her what was wrong, Katherine continued crying and insisted that if she told, her mother wouldn't love her anymore. Melissa, aware that something was wrong, asked Katherine if someone had hurt her, and learned that Katherine had been assaulted. In her rage, Melissa went down to defendant's apartment, broke through his door and attacked him with a kitchen knife. She was arrested and taken to jail until March 15. She did not spend any time alone with her children until that time.

At about 11 a.m. the morning of March 10, a Billings police officer took the defendant's statement at the Billings Deaconess Hospital. At that time defendant maintained that an unknown lady had attacked him with a knife, and that although she may have lived in the building, he did not know who she was. In another statement to police on March 12, defendant admitted knowing Melissa and her family, but denied any close familiarity with them. He stated that he believed Melissa made up the sexual assault story to cover for her attack on him.

Sometime after the assault defendant moved from apartment 15, where Katherine was raped, to a new apartment in the building, apartment 29. On March 14, defendant consented to a search of his new apartment. The detective explained that the purpose of the search was to find pornography relating to defendant's sexual assault on Katherine. Seven magazines were confiscated. At trial defendant admitted that the magazines confiscated from apartment no. 29 were the same that he had in his earlier apartment, number 15.

Katherine was examined by a doctor, Doctor Patrick Sauer on March 13. His conclusion from the examination, as well as from Katherine's statements to him, was that he was 99.99 percent sure that Katherine had been sexually assaulted. Dr. Sauer testified that Katherine's hymen was gone and that her vaginal opening was twice the size normal for a child of her age. He further testified that he found three abrasions inside the vaginal opening, each approximately 1/2 in length.

On April 23, 1985 Social Worker Susan Kerns of the Yellowstone County Resource Department gave her statement to the police. She had been the social worker assigned to Melissa and her family since August of 1984. Her statement contained two pertinent passages to this appeal:

Q. (by the police) ... [H]ad you occasion to talk to the children or have anything to do with the family within a couple of weeks previous [to the assault]?

A. I saw the family about two weeks earlier.

Q. And did you notice anything peculiar at that time?

A. [W]hile I was there I noticed that Katherine getting up from taking a nap and scratching herself in the vaginal area.

* * *

* * *

Q. (by the police) ... Since (the rape) have either of the children mentioned anything new to you?

A. There is a possibility Katherine may have been assaulted once by a man who picked her up on the street as she was walking home from school.

Q. Do you recall or do you know when that might have been?

A. No, and I don't know what the man's name was, she did not have the name, ah I, just don't know how we can track that down.

Q. Did she, or was she able to describe to what extent the assault occurred?

A. No.

The first of the three issues concern these comments by Ms. Kerns. Defendant maintains that it was error for the District Court to prevent defendant from asking Dr. Sauer whether a previous assault could be the explanation for the physical injuries he used in concluding that she had been assaulted. Defendant also argues that the testimony of social worker Kerns on Katherine's apparent vaginal irritation two weeks before the assault was evidence he should have been able to use to mitigate the adverse physical evidence against him. The implication was that Katherine's irritation was caused by an earlier assault and that Katherine was fabricating the charge against defendant. The trial court ruled that defense counsel was not allowed to examine any State's witness regarding any alleged prior assault. We affirm its decision.

Defense counsel intended to bring the matter up for cross examination under Sec. 45-5-511(4), MCA. Section 45-5-511, MCA, provides in relevant part:

(4) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except:

(a) evidence of the victim's past sexual conduct with the offender;

(b) evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

It is our view that neither of the above quoted exceptions pertain to the alleged incident of assault. First, this incident was not alleged to have occurred with the defendant and, even were it so alleged, would not have been exculpatory because of the victim's and defendant's ages. Second, the alleged assault hardly constituted a specific instance of the victim's sexual activity. The defendant admittedly knew very little about the speculated earlier assault. The record does not even indicate if the incident was sexual in nature. Ms. Kern's statement that there was a "possibility" of assault, without further explanation, was an inadequate offer of proof and was insufficient to support any cross examination under...