State v. Smith

• Decision Date: 29 October 1998
• Docket Number: No. 97-401,97-401
• Citation: 291 Mont. 236,967 P.2d 424
• Parties: , 1998 MT 257 STATE of Montana, Plaintiff and Respondent, v. Ernest G. SMITH, Defendant and Appellant.
• Court: Montana Supreme Court

Page 424

967 P.2d 424

291 Mont. 236, 1998 MT 257

STATE of Montana, Plaintiff and Respondent, v. Ernest G. SMITH, Defendant and Appellant.

No. 97-401.

Supreme Court of Montana.

Submitted on Briefs Sept. 17, 1998.

Decided Oct. 29, 1998.

Steven M. Hudspeth, Attorney at Law, Great Falls, Montana, for Appellant.

Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney

General, Helena, for Respondent, David G. Rice, County Attorney, Havre, for Respondent.

TURNAGE, Chief Justice.

¶1 Ernest G. Smith was convicted of sexual assault in a jury trial in the Twelfth Judicial District Court, Hill County. Smith appeals. We affirm.

¶2 The issue is whether the District Court erred in prohibiting Smith's character witnesses from giving their opinions that Smith, due to his good character, was not capable of committing the charged offenses.

¶3 In July 1996, Smith and his wife went camping with some friends at Beaver Creek Park in Hill County, Montana. Among the others camping with them were two fourteen-year-old girls, J.G. and K.G., and J.G.'s family. Both J.G. and K.G. testified at trial that they were sleeping in their tent when Smith entered the tent and proceeded to engage in sexual contact with them. They recognized his voice as he told them to stay still and that he would not hurt them. After they yelled at him and he left the tent, the girls reported the incident to J.G's mother and then to the Hill County Sheriff's Office.

¶4 Smith was charged with sexual intercourse without consent concerning K.G. and sexual assault concerning J.G. At trial, he testified on his own behalf and presented three character witnesses. The jury found him guilty of the lesser included offense of sexual assault upon K.G., but not guilty of the other charges against him. Smith appeals.

Discussion

¶5 Did the District Court err in prohibiting Smith's character witnesses from giving their opinions that Smith, due to his good character, was not capable of committing the charged offenses?

¶6 This Court reviews a district court's evidentiary rulings for abuse of discretion. The trial court has broad discretion in determining whether evidence is relevant and admissible, and absent a showing of abuse of discretion, this Court will not overturn that court's rulings. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

¶7 The specific question to which objection was made and sustained occurred in the following colloquy between Smith's counsel and the first of Smith's three character witnesses:

Q. You're aware that [Smith is] charged with sexual intercourse without consent against one girl and sexual assault against the other girl?

A. Yes.

Q. Based upon your knowledge of [Smith], do you believe that [he] is capable of such a thing?

A. No, I don't--

[STATE'S COUNSEL]: Objection, Your Honor. I don't think that's a proper question for the witness. It invades the province of the jury.

THE COURT: Sustained.

During testimony by the second of Smith's character witnesses, the State objected "to any questions, whether he was committing these offenses." The court's response was, "We will get [the witness's] opinion by opinion or reputation." Smith's counsel did not thereafter attempt to ask his second and third character witnesses whether they thought Smith was capable of the crimes of which he was accused. On appeal, Smith argues that his counsel should have been allowed to ask all three of his character witnesses if they believed he was capable of committing those crimes.

¶8 Smith is correct that a witness's answer to a question is not rendered inadmissible solely on the basis that it "invades the province of the jury." Rule 704, M.R.Evid., provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Rule 704, however, is not intended to allow all opinions, and would exclude those which would merely tell the jury what result to reach. Advisory Committee's Note to Federal Rule 704, 56 F.R.D. 183, 285, as quoted in the Commission Comments to Rule 704, M.R.Evid. A court may exclude ultimate issue testimony when it is not helpful to the trier of fact, or under the rules governing exclusion of relevant evidence on grounds of prejudice. Mathie v. Fries (E.D.N.Y.1996), 935 F.Supp. 1284, 1295-96, aff'd, 121 F.3d 808 (2nd Cir.1997).

¶9 Rule 404(a), M.R.Evid., generally excludes evidence of a person's character for purposes of proving action in conformity therewith. One exception allows an accused to present evidence of a "pertinent trait of character" to support an inference that he did not commit the offense. Rule 404(a)(1), M.R.Evid. This Court has specifically recognized the appropriate use of character evidence in prosecutions for sexual offenses. State v. Anderson (1984), 211 Mont. 272, 292, 686 P.2d 193, 204; State v. Austad (1982), 197 Mont. 70, 89, 641 P.2d 1373, 1383.

¶10 Smith cites four cases which he argues entitle him to present his witnesses' testimony that they did not believe him capable of the crimes with which he was charged. However, none of the cases he cites stand directly for that proposition. In the first case, Anderson, the defendant's wife and others testified, apparently without objection, that the charges against the defendant did not comport with their knowledge of him. The court allowed them to so testify; whether that was proper was not an issue raised on appeal. See Anderson, 211 Mont. at 292, 686 P.2d at 204. This Court therefore did not have the opportunity to rule on the propriety of that testimony.

¶11 In the second case Smith cites, United States v. Gillespie (9th Cir.1988), 852 F.2d 475, the court ruled that the trial court abused its discretion by admitting the testimony of a clinical psychologist regarding characteristics of child molesters in general. The court reasoned that the defendant had not presented any witnesses who testified that he had any specific character traits that rendered him incapable of molesting a female child. Gillespie, 852 F.2d at 480. However, the court's ruling did not equate to a conclusion that the testimony which defendant did not present would have been admissible.

¶12 In State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455, the defendant's conviction was reversed because, among other reasons, "bad character evidence"--evidence that he was a cocaine dealer--was allowed without the door having been opened to such evidence. This Court reasoned that the defense's opening statement merely mentioned that law enforcement told the informant that they were interested in getting a conviction against Gommenginger for a drug sale. The ruling that the door was not thereby opened to bad character evidence is not on point with the issue presented in the case at bar.

¶13 Finally, in People v. McAlpin (Cal.1991), 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563, the defendant was accused of sexually molesting his date's eight-year-old daughter. The appellate court...