State v. McQuiston, No. 95-216

Docket NºNo. 95-216
Citation277 Mont. 397, 922 P.2d 519
Case DateMay 14, 1996
CourtUnited States State Supreme Court of Montana

Page 519

922 P.2d 519
277 Mont. 397
STATE of Montana, Plaintiff and Respondent,
v.
Leslie McQUISTON, Defendant and Appellant.
No. 95-216.
Supreme Court of Montana.
Heard May 14, 1996.
Submitted May 31, 1996.
Decided Aug. 6, 1996.

Page 521

[277 Mont. 399] William F. Hooks, State Appellate Defender (argued), Helena, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Asst. Attorney General (argued), Helena, Thomas R. Scott, County Attorney, Dillon, for Plaintiff and Respondent.

ERDMANN, Justice.

Appellant Leslie McQuiston appeals from the judgment and sentence entered by the Fifth Judicial District Court, Beaverhead County, convicting him of sexual intercourse without consent and incest. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in allowing testimony regarding other acts committed by McQuiston?

[277 Mont. 400] 2. Do McQuiston's convictions for sexual intercourse without consent and incest violate double jeopardy protections?

3. Did the District Court err in sentencing McQuiston?

FACTS

In February 1989, Heidi McQuiston (Heidi) was nineteen years old. She lived in a mobile home in Dillon with her two children, her natural mother, Jackie Jenkins (Jackie), her brother and her adoptive father, Leslie McQuiston (McQuiston).

Heidi testified that on or about February 10, 1989, McQuiston came into the kitchen where she was standing and asked her to go to his bedroom because he needed to talk to her. Neither her mother nor her brother were home. Heidi followed McQuiston into the bedroom where he shut the door behind her. McQuiston then told Heidi to take her clothes off and told her he would beat her if she refused. Heidi took her clothes off and McQuiston told her to get on the bed. He then disrobed himself and engaged in sexual intercourse with her.

On January 3, 1994, McQuiston was charged by Information in the Fifth Judicial District Court, Beaverhead County, with one count of sexual intercourse without consent, a felony, pursuant to § 45-5-503, MCA, and in the alternative, with one count of incest, a felony, pursuant to § 45-5-507, MCA. In a supporting affidavit, the County Attorney stated that Heidi had given birth to three children and that McQuiston was the putative father of all three. Results of paternity tests indicated over a ninety-nine percent probability that McQuiston was the father of Heidi's three children.

McQuiston moved to dismiss the charge of sexual intercourse without consent claiming that only the incest statute applied to him. The District Court denied the motion and the State then filed an amended Information indicating that the charges of sexual intercourse without consent and incest were charged separately and independently, not alternatively.

A jury trial was conducted on October 6 and 7, 1994. After Heidi testified about the specific incident for which McQuiston was charged, a sidebar discussion took place off the record. The District Court then admonished

Page 522

the jury that the testimony they were about to receive concerned other acts by the defendant and that the evidence was not being admitted to prove the character of the defendant. The court told the jurors that McQuiston was not being tried for other crimes, wrongs, or acts and that they were to consider the testimony for limited purposes.

[277 Mont. 401] After the court admonished the jury, Heidi testified that the February 10, 1989, incident was not the first time that McQuiston had had sexual intercourse with her. She testified that McQuiston had begun sexual advances toward her when she was nine years old. Heidi stated that when she reached the age of fourteen she discovered through movies shown at health class that what her father was doing to her was not normal. Thereafter she began to resist McQuiston's advances, but when she resisted her father, she was beaten.

Heidi testified that she was beaten so many times for resisting McQuiston that she could not remember them all and she could not estimate how many incidents of sexual intercourse had occurred. She also testified there were times when her father would beat her and then proceed to have sex with her. The incidents of intercourse occurred about two or three times a week, but gradually decreased to the point that in February, 1989, McQuiston was having sex with Heidi approximately once a week. The February 10, 1989, incident was the last time Heidi had sexual contact with her father.

On Heidi's cross-examination, defense counsel asked her specific questions about the beatings and elicited testimony concerning an incident in Salem, Oregon, in the early 1980s when McQuiston had hit Heidi for calling him a pig. Heidi's mother confirmed the Oregon beating. When Jackie was asked by the State to describe the facts surrounding the beating, she said that when Heidi brought McQuiston a cup of coffee he belched and she called him a pig. Jackie testified that McQuiston "went crazy" and beat Heidi. Defense counsel did not object to any of Jackie's testimony concerning the Oregon beating. Jackie also testified that there were at least twenty times when she returned home from work and Heidi would have a black eye or a fat lip.

McQuiston testified that he had hit Heidi only twice and denied any sexual contact between himself and Heidi. He stated that he believed he had treated Heidi "like a daughter" and that when he had hit her, it was "corrective." McQuiston testified that he first discovered that Heidi was pregnant when he was released from jail in Kalispell. He claimed that Heidi, Jackie, and her brother had accused him of the crimes because they were jealous of his current financial status. McQuiston testified that he was remarried, had two children, had paid for his vehicles, made about $65 a day and had money in his pocket. He testified on direct examination that he was "way better off" than he had been when he was married to Jackie.

On cross-examination, the County Attorney asked McQuiston about an existing court-ordered restitution requirement in an unrelated[277 Mont. 402] action. McQuiston testified that he had been ordered to pay $10,100 in increments of $100 per month and admitted he had not made any of the monthly payments for a year. When asked if he had enough money to pay the restitution payments, he stated he did but that he had spent the money on other items. Defense counsel did not object to any of the testimony regarding the restitution requirement and there was no evidence submitted as to the underlying crime for which restitution had been ordered.

The jury found McQuiston guilty of sexual intercourse without consent and incest. This appeal followed.

ISSUE 1

Did the District Court err in allowing testimony regarding other acts committed by McQuiston?

McQuiston argues that the State exceeded the scope of its pretrial notice regarding evidence of other acts which it intended to introduce at trial. McQuiston contends that when the State offered evidence concerning the Oregon beating incident and the restitution requirement, it exceeded the scope of its intended use of alleged other acts. McQuiston

Page 523

argues that these two past acts were unrelated to the crime for which he was charged and that the prejudicial impact of admitting them far outweighed any probative value they may have had. Furthermore, McQuiston relies on State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, and State v. Just (1979), 184 Mont. 262, 602 P.2d 957, to argue that the District Court did not properly admonish the jury prior to admitting the evidence.

The State argues that the Oregon beating incident was properly admitted as going to the res gestae of the rape and incest charges. The State claims that even though the Oregon beating did not involve sexual contact, it was sufficiently similar to the other beatings that Heidi had received and therefore was properly admitted to show the long history of McQuiston's intimidation and domination of Heidi. The State further notes that since the testimony was initially elicited by defense counsel, no error should be charged to the District Court or to the State for its admission.

The State argues that the purpose of introducing the evidence concerning the restitution requirement was to inquire into McQuiston's financial status in an effort to rebut or impeach his prior testimony that he was financially well off. The State maintains that the District Court properly admonished the jury before Heidi testified concerning the many years of prior abuse and that the court was not [277 Mont. 403] required to admonish the jury again prior to receiving testimony concerning the Oregon beating and the Kalispell restitution order.

We have stated that district courts have broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the court's determination will not be overturned. State v. Pace (1995), 272 Mont. 464, 467, 901 P.2d 557, 559 (citing State v. Keys (1993), 258 Mont. 311, 314, 852 P.2d 621, 623).

We first address the Oregon beating incident. In Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077, this Court held that counsel, by inquiring into a Forest Service ranger's report for the first time on cross-examination, opened the door for further inquiry on redirect and effectively overcame his own objection to matters contained therein. Cline, 803 P.2d at 1081. Likewise, in the present case McQuiston elicited the circumstances surrounding the Oregon beating on Heidi's cross-examination and the matter was only revisited by the State on its redirect examination of Heidi and its direct examination of Jackie. Thus, the District Court did not err in admitting the evidence of the Oregon beating incident.

With respect to the evidence related to McQuiston's restitution requirement, we determine that the testimony was elicited by the State on cross-examination in an effort to...

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