State v. Rogers
| Decision Date | 07 December 1999 |
| Docket Number | No. 98-547.,98-547. |
| Citation | 1999 MT 305,992 P.2d 229 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Donald ROGERS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Chad Wright, Office of Appellate Defender, Helena, Montana, For Appellant.
Hon. Joseph P. Mazurek, Attorney General; Jennifer M. Anders, Assistant Attorney General; Helena, Montana, Tom Esch, Flathead County Attorney; Kalispell, Montana, For Respondent.
¶ 1 Donald Rogers (Rogers) appeals from the judgment and sentence entered by the Eleventh Judicial District Court, Flathead County, on a jury verdict finding him guilty of sexual intercourse without consent. We affirm in part and reverse in part.
¶ 2 We restate the issues on appeal as follows:
¶ 3 1. Did the District Court abuse its discretion in admitting testimony by the emergency room physician?
¶ 4 2. Did the District Court abuse its discretion in admitting testimony about previous sexual assaults by Rogers?
¶ 5 On May 29, 1997, Rogers met Kristian Gale (Gale) at the Blue Moon Saloon, near Columbia Falls, Montana, where each had gone to enjoy the live music. They talked, had drinks and danced. Gale declined Rogers' advances throughout the evening, and they left the bar in separate vehicles sometime after midnight. After following Gale for a time, Rogers pulled his pickup in front of her Bronco and stopped. Rogers then approached Gale's vehicle.
¶ 6 According to Gale, her vehicle had stalled when Rogers cut her off and, when he reached her, he grabbed her arm and her keys and threatened to hurt her if she did not do what he asked. Rogers told Gale to get in his truck, but she refused, saying, "If you're gonna do this, do it in my truck." Gale then suggested she move her vehicle off the roadway and, with Rogers reaching in through the window and holding onto the steering wheel, she did so. Rogers directed her to disrobe and get in the back seat, and she did. According to Gale, while in the back of her vehicle, Rogers grabbed her hair, pushed her head into his crotch and forced her to perform oral sex on him. He subsequently pulled her head up and began kissing her and penetrating her vagina with his finger. As Rogers was about to engage in sexual intercourse with her, Gale asked him to use a condom. He replied he had no diseases and proceeded with intercourse.
¶ 7 Gale left the vehicle to relieve herself and, when she returned, Rogers was in the front seat of her vehicle. Gale joined Rogers in the front seat and each had a beer. Rogers talked about having been in prison for drug problems and not wanting to go back; Gale consoled him, suggesting he ask for help "from above." Rogers asked if Gale would like to have sex again. She declined, but asked for his phone number in case she changed her mind. Gale drove Rogers the short distance back to his pickup.
¶ 8 As Rogers got out of Gale's vehicle, he told her that, if she intended to call the police, she should run over him right then. Gale said she was not going to call the police and drove home. She called a friend in Seattle to discuss the incident and told her friend she was reluctant to report the incident because no one would believe her. Her friend convinced her otherwise and she called law enforcement. Flathead County Sheriff's Deputy Gordon Barthel met with Gale and she related what had occurred, describing the location of the incident, Rogers' vehicle and Rogers, including his name. Another deputy took Gale to the emergency room at Kalispell Regional Hospital, where Dr. James Dusing, the emergency room physician, examined her and found two "hickeys" on her neck and a tear in her labia.
¶ 9 The State of Montana (State) subsequently charged Rogers by information with sexual intercourse without consent, a felony. His first trial ended in a mistrial. ¶ 10 At Rogers' second trial, the State's case focused on Gale's flight attendant training in dealing with hostage situations, where she was taught to submit to demands and negotiate to stay alive. Gale testified she felt threatened during the incident with Rogers, even though she did not see a weapon, so she applied her training to the situation. Dr. Dusing testified, over Rogers' objection, that Gale's emotional state in the emergency room was consistent with what he had observed in other patients who reported being raped. The District Court also admitted, over Rogers' objection, testimony from two women, Angela Tretteen (Tretteen) and Janice Lee Auwen (Auwen), regarding prior acts of sexual assault by Rogers against them. Rogers admitted having sexual intercourse with Gale, but claimed she was a willing participant. The jury found Rogers guilty of sexual intercourse without consent and the District Court subsequently sentenced him and entered judgment. Rogers appeals.
¶ 11 Trial courts have broad discretion in determining whether evidence is relevant and admissible, and we will not overturn a trial court's evidentiary ruling on appeal absent an abuse of that discretion. State v. Smith, 1998 MT 257, ¶ 6, 291 Mont. 236, ¶ 6, 967 P.2d 424, ¶ 6 (citation omitted).
¶ 12 1. Did the District Court abuse its discretion in admitting testimony by the emergency room physician?
¶ 13 Dr. Dusing treated Gale in the emergency room on the morning she reported being raped. Prior to the introduction of Dr. Dusing's testimony at Rogers' second trial by videotaped deposition, Rogers objected to the following direct examination testimony:
Rogers asked the court to excise the testimony from the videotape on the grounds it was opinion testimony for which he did not "think a foundation [had] been laid." Without specifying whether Dr. Dusing was offering an opinion at all or, if so, whether it was expert or lay opinion testimony, the District Court overruled the objection and admitted the entire videotaped testimony. The court observed that Dr. Dusing had been an emergency room physician for more than 12 years, during which time he would have been exposed to people who reported being raped, and concluded that that experience provided foundation for Dr. Dusing to report whether or not Gale's demeanor was consistent with what he had observed in his experience.
¶ 14 Rogers contends the District Court abused its discretion in admitting the testimony because the State failed to lay a proper foundation of special training or experience to qualify Dr. Dusing as an expert in Rape Trauma Syndrome (RTS) and because Dr. Dusing testified to the ultimate issue of whether Gale was raped and to her credibility. The State responds that Dr. Dusing did not testify regarding RTS and, therefore, it was unnecessary to lay a foundation qualifying him as an expert in RTS. In addition, the State contends Dr. Dusing's testimony did not encompass the ultimate issue or Gale's credibility because it was limited to his observations and experience within his own practice.
¶ 15 RTS is a post-traumatic stress disorder which persons subject to severe trauma such as rape may experience. State v. Liddell (1984), 211 Mont. 180, 187-88, 685 P.2d 918, 923. We previously have permitted a person qualified as an expert in RTS to testify regarding the presence of physical and psychological symptoms of RTS in a victim, as well as the cause of such symptoms, when consent to sexual intercourse is at issue. Liddell, 211 Mont. at 188,685 P.2d at 923. Dr. Dusing's testimony in this case, however, was limited to his observations of Gale while he examined her and the extent to which her emotional state was consistent with that of other women reporting rape he had examined. He did not testify that Gale exhibited symptoms of RTS or that the cause of her symptoms probably was rape. We conclude that Dr. Dusing did not testify about RTS and, therefore, the State was not required to qualify him as an expert on that subject.
¶ 16 In support of his contention that Dr. Dusing testified to the ultimate issue and to Gale's credibility, Rogers asserts the District Court allowed Dr. Dusing "to tell the jury that Gale's behavior meant that she was telling the truth about being raped." Rogers over characterizes Dr. Dusing's testimony.
¶ 17 When asked if Gale's emotions as he had previously described them—at times angry, at other times teary eyed—seemed inappropriate to him, Dr. Dusing merely stated that The testimony did not characterize Gale's emotions as having any particular meaning, much less state that Gale was telling the truth about being raped. It merely compared Gale's emotional state with that of other women in Dr. Dusing's experience who had reported being raped.
¶ 18 The general rule is well established that an expert may not comment on the credibility of an alleged victim. See State v. Stringer (1995), 271 Mont. 367, 377, 897 P.2d 1063, 1069
(citations omitted). Here, however, Dr. Dusing carefully limited his testimony to his observations of her as compared with other women in his professional experience who reported being raped; he did not state that her emotions were consistent with—and appropriate for—women who had been raped. Such limited statements and comparisons of objectively observable behavior do not constitute an opinion on credibility. Nor did Dr. Dusing offer an opinion on the ultimate issue of whether the sexual intercourse between Gale and Rogers was consensual or not.
¶ 19 We hold the District Court did not abuse its discretion in admitting Dr. Dusing's testimony.
¶ 20 2. Did the...
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