State v. Walters

• Decision Date: 28 February 1991
• Docket Number: No. 90-142,90-142
• Citation: 806 P.2d 497,247 Mont. 84
• Parties: STATE of Montana, Plaintiff and Respondent, v. George Ronald WALTERS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 497

806 P.2d 497

247 Mont. 84

STATE of Montana, Plaintiff and Respondent, v. George Ronald WALTERS, Defendant and Appellant.

No. 90-142.

Supreme Court of Montana.

Submitted on Briefs Nov. 29, 1990.

Decided Jan. 28, 1991.

Rehearing Denied Feb. 28, 1991.

Michael Donahoe, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., Elizabeth Griffing, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Tammy Plubell, Deputy County Atty., Great Falls, for plaintiff and respondent.

TURNAGE, Chief Justice.

George Ronald Walters appeals his felony convictions of sexual assault and sexual intercourse without consent following a jury trial in the Eighth Judicial District, Cascade County. We affirm.

Walters presents the following issues:

1. Did the District Court abuse its discretion in determining that the four-year-old victim was competent to testify?

2. Did the District Court improperly conclude that the State did not have to prove the reliability of an expert witness's testimony concerning the child victim meeting the profile of a sexually abused child?

3. Did the District Court abuse its discretion in allowing a police officer to refresh his recollection by reviewing the transcript of an interview the officer had with the appellant?

4. Did the District Court err when it excluded evidence that the victim's mother had, as a child, made a complaint of sexual abuse against her father?

5. Did sufficient evidence exist to support the appellant's conviction of sexual intercourse without consent?

6. Did the District Court abuse its discretion in not sentencing the appellant under the incest statute, Sec. 45-5-507, MCA?

In 1988, the appellant, George Ronald Walters, and his wife, Ruth, resided in Great Falls, Montana, as did their son, Rodney Walters. Rodney lived with Cindy Cameron and Cindy's three-year-old daughter, K.C. Although Rodney was not the natural father of K.C., he considered himself K.C.'s stepfather. K.C., in turn, called Rodney "Dad" and also referred to appellant and Ruth as "Grandpa Ron" and "Grandma Ruth."

On December 28, 1988, Rodney, Cindy, and K.C. went to appellant and Ruth's home to do laundry. While there, Cindy and Rodney decided to go to a movie, which began around 9:00 p.m. Cindy and Rod left K.C. with Ruth; appellant was not home at this time. Prior to departing for the movie, Cindy dressed K.C. in a nightgown and panties and prepared her for bed.

Appellant returned home shortly after Rodney and Cindy had departed. Because Ruth was not feeling well and had to arise early the next day to go to work, she asked appellant to watch K.C. until Rodney and Cindy returned. Ruth then retired to her separate bedroom and closed her bedroom door, although Ruth remained awake and recalled hearing activity in the house until 11:15 p.m.

Ruth testified she left her bedroom and checked on appellant and K.C. on two occasions that evening, once at around 11:30 p.m. and once at around 12:00 a.m. On the first occasion, Ruth noticed that K.C. was not in the bedroom where she had instructed appellant to put her. She then checked appellant's bedroom; the door was open and the room was dark and quiet. Ruth concluded that appellant and K.C. were asleep in appellant's bedroom, and returned to her bedroom. On the second occasion, Ruth testified that she got up and noticed that everything appeared the same; appellant's bedroom was dark and quiet.

Rodney and Cindy returned from the movie at about 12:15 a.m. Upon entering the house, Rodney went into a nearby bathroom, and Cindy proceeded to the living room, where she expected to find K.C. sleeping on the couch. When Cindy did not find K.C. in the living room, she proceeded down the hallway to Ruth's bedroom. In the hallway, Cindy was greeted with a hug by an excited K.C. K.C. then pulled up her nightgown, revealing that she was no longer wearing her panties. Cindy assumed that K.C. left her panties in a bathroom, and asked her to retrieve them; K.C. responded, "no." Cindy again asked K.C. to get her panties and K.C., once again, refused and told Cindy that Grandpa Ron had removed her panties and had "tickled her with his pee."

Shortly thereafter, Rodney appeared from the bathroom, and the visibly-shakened Cindy requested that the three go downstairs in the laundry room and talk. Upon Cindy's request, K.C. repeated to Rodney and Cindy that Grandpa Ron had removed her panties and "tickled her with his pee." Rodney then went upstairs, woke up his mother, Ruth, and asked her what happened.

Cindy and K.C. returned upstairs to the living room, where they were joined by Rodney and Ruth. Cindy asked Ruth to find K.C.'s panties. Upon looking for the panties, Ruth entered appellant's bedroom, and found the panties in his bed. Ruth gave the panties to Cindy. K.C. then repeated her allegations to Ruth, Rodney and Cindy, and added that Grandpa Ron had also "stuck his pee in her mouth and went like that," gesturing an in-and-out movement with her finger in her mouth. K.C. also stated that "it got small and big."

Rodney then confronted appellant with K.C.'s allegations; appellant was in a bathroom located close to his bedroom at this time. Appellant responded with further questions and never denied the allegations; he stated that he was tired and wanted to return to bed.

Rodney returned to the living room, and with Cindy and K.C., gathered their belongings and went outside to their car. Rodney then briefly returned to the house where he again confronted appellant about K.C.'s allegations before leaving.

Confused and upset, Rodney, Cindy, and K.C. drove to the home of Cindy's sister to use a telephone; it was now in the early morning hours of December 29, 1988. While there, Cindy telephoned her parents, who advised her to immediately take K.C. to the hospital for a physical examination. Rodney and Cindy complied with this advice, and took K.C. to the Montana Deaconess Medical Center Emergency Department following the phone call. There, Dr. Nora Gerrity, a pediatrician, observed that K.C. had redness and swelling around her vagina, which was consistent to frictional trauma associated with sexual contact. Dr. Gerrity testified that such redness around the vagina could not have been caused by an infection or a self-inflicted act.

While K.C. was being examined by Dr. Gerrity, Police Detective Robert Dykemen arrived at the hospital and interviewed Rodney and Cindy concerning the incident. The following day, December 30, 1988, Dykemen tried to interview K.C., but she refused to talk with him. Additionally, on January 2, 1989, Dykemen interviewed appellant about the incident. Dykemen testified that appellant indicated more than once during the interview that he was feeling "bad and ashamed," that "it may have happened," and that he generally felt guilty about the incident.

Irene Johnson, a social worker for the Department of Family Services, interviewed K.C. following the incident. Ms. Johnson testified that K.C. was a verbal three-year-old girl who was able to relate a truthful story. Ms. Johnson also believed that K.C.'s mother did not coach K.C. in any way concerning her accounting of the incident. Ms. Johnson referred K.C. to Dr. Janet Hossack, a psychologist and therapist specializing in child sexual abuse, for counseling.

After working with K.C., Dr. Hossack concluded that K.C.'s behavior was consistent with that of a sexually abused child. Prior to the incident, K.C. had been toilet-trained and after the incident, she not only urinated but defecated on the floor. K.C. had been dry during the day and most nights, but after the incident, was wet during the day and night. K.C. had been sleeping fine in her own bed, but after the incident, had difficulty sleeping without her mother. About a month after the incident, K.C. began acting out sexually by masturbating, had periods of spacing out, experienced temper tantrums, and was increasingly hyperactive and irritable. Based on K.C.'s actions and accounting, Dr. Hossack believed that K.C. had been sexually abused. Dr. Hossack also noted that a three- to four-year-old child is incapable of fabricating such an incident.

On March 14, 1989, appellant was charged by information with sexual assault and sexual intercourse without consent in violation of Secs. 45-5-502, and -503, MCA. The information alleged that appellant had subjected K.C. to sexual contact by rubbing his penis against her vaginal area and to sexual intercourse without consent by placing his penis in K.C.'s mouth.

Original counsel for appellant stipulated to the admittance of a videotape deposition of K.C., which was taken on December 7, 1989. On December 11, 1989, however, appellant dismissed his original counsel, and obtained new counsel. Upon reviewing the videotape deposition, appellant's new counsel objected to the admittance of the videotape deposition asserting that K.C. was not a competent witness. A competency hearing was held prior to trial on January 15, 1990. The District Court, after examining K.C. and Dr. Hossack, determined that K.C. was a competent witness, and held K.C.'s videotape deposition admissible.

On the videotape, K.C. testified that she understood what it meant to tell the truth, and that there were consequences if she failed to tell the truth. Although K.C. displayed some confusion and inconsistency during parts of her videotape deposition, she accurately responded to questions pertaining to her age, name, and colors in the room. Additionally, K.C. responded to questions with regard to the incident.

Following the jury trial, on January 16, 1990, appellant was found guilty of sexual assault and sexual intercourse without consent. On February 22, 1990, the District Court sentenced appellant to twenty years imprisonment for sexual assault with ten years suspended, and thirty-five years imprisonment for sexual intercourse without consent with ten years suspended, both of these sentences to run consecutively. From...