State v. Olson

• Decision Date: 23 December 1997
• Docket Number: No. 97-077,97-077
• Citation: 286 Mont. 364,951 P.2d 571
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bernard Hugh OLSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 571

951 P.2d 571

286 Mont. 364

STATE of Montana, Plaintiff and Respondent, v. Bernard Hugh OLSON, Defendant and Appellant.

No. 97-077.

Supreme Court of Montana.

Submitted on Briefs Dec. 4, 1997.

Decided Dec. 23, 1997.

[286 Mont. 367] Jeremy Gersovitz, Public Defender, Helena, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Mike McGrath, County Attorney, Carolyn Clemens, Deputy County Attorney, Helena, for Plaintiff and Respondent.

TURNAGE, Chief Justice.

Bernard Olson appeals from the order and judgment of the First Judicial District Court, Lewis and Clark County, convicting him of three counts of sexual assault. We affirm.

Olson raises the following issues on appeal:

1. Did the District Court abuse its discretion when it determined J.H. was competent to testify?

2. Was there sufficient evidence to support Olson's convictions of sexual assault?

BACKGROUND

In October 1995, Olson, then age 48, traveled to Helena, Montana, for surgery on his varicose veins and stayed at God's Love, Inc., a homeless shelter. While there, he volunteered to arrange donated clothes stored in the basement. God's Love staff did not tell Olson to help fit people for clothing. According to Olson, he was not supposed to be alone with children at the shelter.

W.M.'s mother is the manager of God's Love. After school, W.M.'s mother's husband would drop off W.M., then eight years old, at God's Love. Because God's Love is primarily a men's shelter, W.M.'s mother did not permit her to enter the basement alone. However, W.M. sometimes disregarded this rule.

While driving to God's Love one day, W.M.'s mother's husband overheard W.M. tell her brother that she wondered if the man who touched her in a bad way would be at the shelter. W.M.'s mother learned of the conversation and asked W.M. what had happened at God's Love. W.M. reluctantly told her mother a man had touched her in a bad way. When W.M. described him, there was no question in her mother's mind that W.M. had described Olson. W.M.'s mother contacted the police.

At trial, W.M. recognized Olson as the man who had touched her. W.M. described two instances when he touched her breasts. Once, she was riding a Big Wheel in the basement, and Olson came up to her from behind and rubbed her breasts with both of his hands. Another time in the basement, Olson rubbed W.M.'s breasts when he gave her a dress. W.M.'s mother and her mother's friend were in the basement picking out toys. W.M. testified she could see Olson when he gave her the dress, and the same guy who gave her the dress put his hands on her breasts and rubbed them.

W.M. spoke with Helena Police Officer Debra Drynan, who asked W.M. to draw a picture of what happened. The picture was introduced at trial. W.M. explained her picture depicted Olson coming to her from behind and touching her breasts, and her mother and her mother's friend looking at toys. W.M. testified that after Olson rubbed her breasts, he put her on top of his shoulders and her "mom told him not to do it again," so Olson put her down.

Olson maintained he was never alone with W.M. in the basement, and he would leave when she came down alone. Olson did not remember the Big Wheel incident. He denied sexually assaulting W.M., and when his attorney asked him how he was able to say that, Olson responded, "To me, none of the girls ... have breasts. To me, that is chest. And I do not find them as sexual objects." When asked if he ever touched W.M. in the chest or breast area, Olson stated he may have touched her when lifting her or giving her a hug from behind.

At trial, Olson recalled helping W.M. look for a dress. When his attorney asked why W.M. would state that he rubbed her chest during the dress incident, Olson responded:

I may have given her a hug from behind, just a quick one, two, three, four second hug.... [N]othing real heavy. Just a quick, gentle, light hug, nothing ... that I would make somebody feel uncomfortable trying to hold them.

Olson also remembered putting W.M. on his shoulders. He stated that when he picked W.M. up and put her down his hands were on the sides of her rib cage. Olson explained his back became fatigued, and he put W.M. on his shoulders to correct it.

T.R., then age eleven, and her family stayed at God's Love. T.R.'s mother learned a man had been accused of touching a girl at God's Love. T.R.'s mother spoke with T.R., who became quiet and scared and said a man had touched her breasts when he was showing her how to tie a tie. When T.R.'s mother questioned whether the touching could have been accidental, T.R. told her it was not. T.R.'s mother determined Olson was the man who touched T.R. because she was in the basement when Olson taught T.R. how to tie a tie.

T.R. testified that she wanted to learn how to tie a tie, and Olson showed her how. While teaching her, Olson rubbed her chest in the same manner a person would rub a cat. T.R. stated that Olson was behind her, and when he rubbed her chest, no one saw him do it.

At trial, Olson recalled the day he had shown T.R. how to tie a tie. He stood behind T.R. and put a tie around her neck and tied it. When he showed T.R. how to adjust the tie, he touched her but was not sexually aroused or gratified. When asked if he may have rubbed T.R.'s breast when tying the tie, Olson answered that a chest is on a girl and a breast is on a woman, and he considered T.R. "a girl, not a woman or even a budding woman[.]"

In late 1995, Laurie and her two daughters, T.H., then age seven, and J.H., then age five, received assistance from God's Love. While there, they looked for clothes in the basement. One morning, Olson spoke with T.H. about a dress. Laurie heard Olson tell T.H. that he would help her try on a dress, and T.H. told Olson "no." The dress T.H. tried on had ties that wrapped around the dress and tied in front. Laurie testified that after saying "no" to Olson, T.H. stuck close to her.

The same day, Laurie asked Catherine Cain to watch her children. When Laurie returned to God's Love, Cain, T.H., J.H., and Olson were playing cards around a table. No other people in the room looked like Olson. Later that day, T.H. and J.H. told Laurie something had happened at God's Love.

T.H. testified she found a dress in the basement. A man helped her put it on even though she did not ask for help. When the man helped her, he touched her between her legs, and she described the touch as a rub.

Olson remembered the dress incident. The dress had two long ties which were touching the floor and were a safety hazard to T.H. if she stepped on them. To prevent the ties from becoming dirty and to eliminate the hazard, Olson tied a knot in front of the dress. He denied sexually assaulting T.H. He admitted that in tying the knot, he probably brushed up against T.H. but claimed his touching did not lead him to be sexually aroused or gratified.

J.H. testified she was at God's Love sitting on a man's lap playing cards. A man touched her slowly twice where her legs meet at the top. She identified Olson as the man with whom she was playing cards.

At trial, Olson recalled the day to which J.H. referred. He stated J.H., T.H., Cain, and other adults were sitting at a table but claimed he was sitting elsewhere. He denied sexually assaulting J.H. He stated J.H. never sat on his lap because for months after the surgery on his varicose veins it was painful to have anything on his lap.

Officer Drynan interviewed T.H. and J.H., who described the person who had touched them. After the interview, Officer Drynan and another officer went to God's Love. They described the suspect, and the God's Love staff gave them two names. However, when the officers informed the staff that the suspect wore glasses and red suspenders, the staff informed them that only Olson wore red suspenders.

The State charged Olson by amended information dated March 21, 1996, with three counts of sexual assault in violation of § 45-5-502, MCA. Count I alleged Olson sexually assaulted W.M., Count II alleged Olson sexually assaulted T.R., and Count III alleged Olson sexually assaulted T.H. and J.H. Olson pleaded not guilty to all three counts.

Olson waived his right to a jury trial. Following a bench trial, the District Court found him guilty on all three counts. The court sentenced Olson to the Montana State Prison for three consecutive fifteen-year sentences, with five years suspended on each.

DISCUSSION

1. Did the District Court abuse its discretion when it determined J.H. was competent to testify?

Rule 601, M.R.Evid., provides:

(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 expression concerning the matter so as to be understood by the judge and jury ether directly or through interpretation by one who can understand the witness or (2) the witness is incapable of understanding the duty of a witness to tell the truth.

Witness competency is within the discretion of the trial court and will not be overturned absent an abuse of discretion. State v. Walters (1991), 247 Mont. 84, 90, 806 P.2d 497, 500. The requirements for determining competency are "capacity of expression and appreciation of the duty to tell the truth." State v. Eiler (1988), 234 Mont. 38, 42, 762 P.2d 210, 213. A witness appreciates her duty to tell the truth if she understands the difference between the truth and a lie and understands that she has to tell the truth in court. Eiler, 762 P.2d at 214-15.

Rule 601 has no age requirement. State v. Rogers (1984), 213 Mont. 302, 307, 692 P.2d 2, 5. This Court allowed the testimony of a four-year-old victim in Walters, 806 P.2d at 500; and the testimony of a five-year-old victim in State v. Howard (1991), 247 Mont. 370, 372, 806 P.2d 1038, 1039.

Olson...