                                                                                          September 25 2007


                                            05-627

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2007 MT 245



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

KIRK WAYNE SPENCER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Tenth Judicial District,
                      In and For the County of Fergus, Cause No. DC 04-26,
                      Honorable E. Wayne Phillips, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      R. Allen Beck, Attorney at Law, Lewistown, Montana

               For Respondent:

                      Honorable Mike McGrath, Attorney General; John Paulson,
                      Assistant Attorney General, Helena, Montana

                      Thomas P. Meissner, County Attorney, Lewistown, Montana



                                                     Submitted on Briefs: July 11, 2007

                                                                Decided: September 25, 2007


Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1        Kirk Wayne Spencer (Spencer) appeals from his conviction in the Tenth Judicial

District, Fergus County, of sexual intercourse without consent with his stepdaughter. We

affirm.

¶2        We restate the issues as follows:

¶3        Did the introduction of S.S.’s hearsay statements violate Spencer’s Sixth

Amendment right to confrontation?

¶4        Did the District Court fail to comply with § 46-16-220, MCA, regarding the

admissibility of child hearsay?

¶5        Did the District Court err in excluding Dr. Scolatti’s videotaped testimony?

                                       BACKGROUND

¶6        Bill and Lisa Weaver became foster parents of Spencer’s infant daughter, T.S.,

twenty-two-month-old daughter, R.S., and three-and-a-half-year-old stepdaughter, S.S.,

on April 2, 2004. Shortly after beginning foster care, Lisa repeatedly observed S.S. and

R.S. exhibiting sexualized behavior, such as masturbating, trying to touch other’s breasts

and genitals, trying to insert toys and other objects into their vaginas, and sexually

playing with toys, dolls, T.S., and one another.

¶7        In May 2004, the Weavers informed Roger Johnson, a social worker with the

Department of Public Health and Human Services (DPHHS), of the girls’ behavior, and

he referred them to Dr. Nora Gerrity, a pediatrician, to determine whether the children

had been abused. Dr. Gerrity physically examined R.S. and S.S. and discovered slight



                                               2
irregularities in R.S.’s hymen and a full transection in S.S.’s hymen, consistent with a

penetrating injury.

¶8     Following the examinations with Dr. Gerrity, R.S. and S.S. began seeing Maggie

Moffatt, a licensed clinical professional counselor. During the counseling sessions, S.S.

made several statements indicating that Spencer had sexually abused S.S. Ms. Moffatt

reported these statements to Johnson, who then reported this information to law

enforcement. S.S. made similar statements to Lisa Weaver, S.S.’s foster mother.

¶9     The State charged Spencer with sexual intercourse without consent on June 8,

2004. The State later added a second count of sexual intercourse without consent for the

alleged sexual abuse of R.S. Spencer pled not guilty to both counts.

¶10    The State filed on September 29, 2004, its first notice of intent to introduce S.S.’s

hearsay statements made to Ms. Moffatt, if S.S. was unavailable for trial. The State later

filed a second and third notice to introduce S.S.’s hearsay statements made to Ms.

Moffatt and Lisa Weaver. At an evidentiary hearing on January 3, 2005, the State and

Spencer stipulated that S.S. would be “unavailable” to testify. Following briefing on the

hearsay statements’ admissibility, the District Court ruled that S.S.’s hearsay statements

could be admitted through the testimony of Ms. Moffatt and Lisa Weaver. The State then

filed a fourth notice of intent to introduce S.S.’s hearsay statements made to Ms. Moffatt;

this motion was orally granted at trial. At trial, the District Court also granted the State’s

motion to exclude video testimony of Dr. Michael Scolatti, a licensed clinical

psychologist, whose testimony indicated that Spencer did not meet the diagnostic criteria

of a pedophile. Spencer’s jury trial began March 14, 2005.

                                              3
¶11    Ms. Moffatt testified about several statements S.S. made regarding sexual abuse

and Spencer. Moffatt testified that on one occasion, in response to a question about naps,

S.S.’s “‘eyes got really big and she said Kirk makes me rest on the couch and then he

puts his potty thing inside me.’ She says ‘right here’ and she points to her private area

with her finger, ‘and it hurts really lots.’” Ms. Moffatt testified that S.S. told her that

Kirk was “my dad.” According to Ms. Moffatt, S.S. referred to “Kirk” or “my dad or my

daddy” when discussing sexual behavior. Ms. Moffatt further testified that S.S. claimed

that no one except her dad had ever touched her that way and that, “Daddy told me not to

tell anyone what he did.” Ms. Moffatt also testified that S.S. related instances of Spencer

performing oral sex on S.S. and R.S. Ms. Moffatt testified that S.S.’s statements were

unexpected and that she had not used leading questions or coaching techniques to elicit

S.S.’s responses.

¶12    Lisa Weaver testified that on one occasion when Lisa was tucking S.S. in for bed,

S.S. spontaneously stated that her “my daddy, my other daddy, stuck his pee-er in me and

it hurt real bad[.]” Lisa testified that she understood “other daddy” to mean Spencer. On

another occasion, while S.S. and T.S. were playing in their play tent, Lisa overheard S.S.

say, “[n]ow, [T.S.], you lie down like this. It doesn’t hurt - - this is how Kirk does it[.]”

Lisa testified that she opened the tent and saw T.S. lying on her back with her legs lying

wide open.

¶13    The jury found Spencer guilty of sexual intercourse without consent with S.S. and

not guilty of sexual intercourse without consent with R.S. The court sentenced Spencer

to thirty-five years in Montana State Prison. Spencer appeals his conviction.

                                             4
                              STANDARD OF REVIEW

¶14   We review de novo a district court’s interpretation of the Sixth Amendment. State

v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8. We review a district

court’s evidentiary rulings for abuse of discretion. Mizenko, ¶ 8. A court abuses its

discretion when i t acts arbitrarily, without employing conscientious judgment, or

“exceeds the bounds of reason, resulting in substantial injustice.” State v. Matz, 2006 MT

348, ¶ 34, 335 Mont. 201, ¶ 34, 150 P.3d 367, ¶ 34.

                                     DISCUSSION

¶15   I      Did the introduction of S.S.’s hearsay statements violate Spencer’s

Sixth Amendment right to confrontation?

¶16   Spencer claims that the District Court incorrectly ruled that S.S.’s statements to

Ms. Moffatt and Lisa Weaver were non-testimonial and thus implicated Montana hearsay

law, rather than the Sixth Amendment. The Sixth Amendment of the United States

Constitution, applicable to the states through the Fourteenth Amendment, guarantees

criminal defendants the right to be confronted with the witnesses against them.

Testimonial hearsay statements are inadmissible unless the declarant is “unavailable” for

trial and the defendant had a prior opportunity for cross-examination.       Crawford v.

Wash., 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).          The Sixth Amendment’s

Confrontation Clause applies only to testimonial hearsay. Davis v. Wash., ___ U.S. ___,

126 S. Ct. 2266, 2274-75 (2006).

¶17   We discussed in Mizenko what constitutes a testimonial statement. In general, a

declarant’s statements are presumed testimonial if they are knowingly made to a police

                                            5
officer or government agent. Mizenko, ¶ 23. A statement is presumed non-testimonial,

however, if the declarant had “objective reason to believe” that the statement served only

“to avert or mitigate an imminent or immediate danger” and the agent receiving the

statement lacked intent to create evidence. Mizenko, ¶ 23. A statement made to a non-

governmental agent is non-testimonial unless the declarant had “clear reason to believe

that the statement would be used in court as substantive evidence against the

defendant[.]”   Mizenko, ¶ 23.      Thus, whether the declarant’s statement was to a

governmental agent or to a non-governmental agent determines which standard applies.

¶18    Spencer claims that Ms. Moffatt and Lisa Weaver were acting under color of law

as State investigators for the purpose of criminally prosecuting him. Spencer bases this

assertion primarily on the fact that foster parents and social workers are statutorily

required to report child abuse or neglect to DPHHS. Section 41-3-201, MCA. Spencer

further asserts that law enforcement waited for and completely relied on results from Ms.

Moffatt’s interviews with S.S. and R.S. to identify Spencer. Based on these assertions,

Spencer claims that his criminal prosecution is the result of a “joint investigation” by law

enforcement, the Fergus County Attorney, DPHHS, Ms. Moffatt, and the Weavers.

Spencer further argues that because S.S.’s statements to Ms. Moffatt and Lisa Weaver

were made during this “joint investigation,” the statements are testimonial. We disagree.

¶19    Though we can conceive of factual circumstances that could support an “under

color of law” argument, Spencer has offered scant evidence to support his conclusory

statements. Spencer is correct that § 41-3-201, MCA, requires foster parents and social

workers to report suspected child abuse or neglect. In addition to foster parents and

                                             6
social workers, the statute also requires reporting by physicians, residents, interns, and

other hospital staff; nurses, osteopaths, chiropractors, podiatrists, medical examiners,

coroners, dentists, optometrists, and other health or mental health professionals; religious

healers; school teachers and school employees; day-care facility staff; and, clergy

members, among others. Section 41-3-201, MCA. There is no indication, however, that

the Legislature intended to deputize this litany of professionals and individuals into law

enforcement, and we refuse to attach that significance to the duty to report.

¶20    Moreover, the trial testimony belies Spencer’s claim of a “joint investigation.”

Ms. Moffatt is employed as a counselor with a private practice, not the State. She

counsels children and adults on a variety of issues, including depression, anxiety, and

abuse. Ms. Moffatt testified that she began seeing S.S. and R.S. in May 2004 and

continued to see S.S. and R.S. after Spencer was charged, including up to the time of her

testimony. She testified that she counsels the children on issues other than sexual abuse,

including basic memory and learning skills. Ms. Moffatt testified that S.S.’s initial

statements regarding sexual abuse were unexpected and not the product of coaching or

leading questions. Ms. Moffatt further testified that she did not know who “Kirk” was

when S.S. declared that “Kirk . . . puts his potty thing inside me . . . and it hurts really

lots.” It was only later, again in response to a non-leading question, that S.S. identified

“Kirk” as her dad. Though the record indicates that Spencer was charged the day after

Ms. Moffatt communicated Spencer’s identity to DPHHS, Ms. Moffatt’s testimony

indicated she was unaware that law enforcement awaited the results of her interviews



                                             7
with S.S. and R.S. before charging Spencer. We conclude that Ms. Moffatt served solely

as a counselor to S.S. and R.S. and did not function as a State investigator.

¶21    Lisa Weaver testified that as a licensed foster parent she was trained to write

things down that seemed important and to contact the DPHHS social worker if problems

persisted. Lisa testified that if she encountered such issues she usually contacted Roger

Johnson, a DPHHS social worker, so that she could learn how to best help S.S. and R.S.

Lisa’s testimony indicated that she contemplated S.S. and R.S. living with the Weavers

permanently and that she spoke with Ms. Moffatt about how to build trust for the future.

Lisa described as “out of the blue” S.S.’s statement that “my daddy, my other daddy,

stuck his pee-er in me and it hurt real bad[.]” Lisa further testified that she did not ask

follow-up questions because her job is to give the children a good home life not to be a

counselor. Our review of the record indicates that Lisa Weaver heard S.S.’s statements in

her capacity as a foster parent, not as a State investigator.

¶22    Having determined that Ms. Moffatt and Lisa Weaver were not acting as

governmental agents when they heard S.S.’s statements, Mizenko counsels that S.S.’s

statements are non-testimonial unless she had “clear reason to believe” the statement

would be used against Spencer in court. Mizenko, ¶ 23. However, the Mizenko “clear

reason to believe” standard as applied to a three-and-a-half-year-old child-declarant is

unworkable; it is strained, awkward, and easily capable of abuse. We find the Supreme

Court’s reasoning in Davis helpful in resolving this issue. In Davis, the Supreme Court

held that, in police interrogations, a statement’s classification as testimonial or non-

testimonial depends largely on the primary purpose of the interrogation producing the

                                               8
statement, based on objective circumstances. ___ U.S. at ___, 126 S. Ct. at 2273-74. If

the interrogation’s primary purpose is to aid police in an ongoing emergency, the

statements are non-testimonial; if the interrogation’s primary purpose is to establish past

facts potentially relevant to a later criminal prosecution, the statements are testimonial.

Davis, ___ U.S. at ___, 126 S. Ct. at 2273-74.

¶23    Applying Davis’s reasoning to this case, the objective circumstances indicate that

when Ms. Moffatt and Lisa Weaver heard S.S.’s statements the primary purpose of their

interactions with S.S. and R.S. were counseling and parenting, respectively.           Ms.

Moffatt’s interactions with S.S. and R.S. took place in her office, often while she played

on the floor with them. As discussed in ¶ 20, Ms. Moffatt’s purpose was to help counsel

S.S. and R.S. Based on these circumstances, the primary purpose of Ms. Moffatt’s

interaction with S.S. and R.S. was to provide them counseling, not to establish past facts

from them for use in Spencer’s prosecution.

¶24    Similarly, Lisa Weaver interacted with S.S. and R.S. in the home. Lisa was

tucking S.S. into bed when S.S. stated that her “other daddy” had abused her. Lisa

overheard S.S.’s statement to T.S.—to “lie down like this. It doesn’t hurt - - this is how

Kirk does it”—while the girls were playing and she was getting camping supplies

together. In essence, the primary purpose for Lisa’s interactions with S.S. and R.S. was

parenting.

¶25    We hold that S.S.’s statements were non-testimonial. Thus, the introduction of

S.S.’s hearsay statements did not violate Spencer’s Sixth Amendment right to

confrontation.

                                              9
¶26    II      Did the District Court fail to comply with § 46-16-220, MCA, regarding

the admissibility of child hearsay?

¶27    Spencer asserts that the District Court failed to hold a hearing addressing the

trustworthiness of S.S.’s hearsay statements and failed to issue findings of fact and

conclusions of law setting forth its reasoning for admitting S.S.’s statements; thus,

Spencer argues, the District Court failed to comply with Montana’s child hearsay rule.

We disagree.

¶28    The District Court held a hearing on January 3, 2005, in which the State and

Spencer questioned Ms. Moffatt and Lisa Weaver regarding S.S.’s statements. At the

hearing, Spencer’s counsel stated in a question to Ms. Moffatt, “I will try not to repeat

what [the prosecutor] has already gone through because he has done a good job in

looking at the statutory criteria that the Judge needs to look at.” (Emphasis added.)

Then, after allowing supplemental briefing, the District Court issued its order admitting

S.S.’s hearsay statements on March 8, 2005. We find no error in the District Court’s

hearing process.

¶29    The admissibility of non-testimonial hearsay statements is governed by the

individual states’ hearsay laws. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374. Section

46-16-220, MCA, sets forth the requirements for admitting child hearsay in Montana

criminal proceedings.

¶30    A district court may admit a child-victim’s hearsay in criminal cases if the child is

unavailable as a witness; the hearsay is evidence of a material fact, and more probative

than any other available evidence; the offering party gives proper notice of the statement;

                                            10
and the court finds the statement has circumstantial guarantees of trustworthiness.

Section 46-16-220, MCA. If these elements are met, the statute then instructs a court to

set forth its reasoning on the admissibility of the child-hearsay in findings of fact and

conclusions of law. Section 46-16-220, MCA. The statute specifically instructs courts to

consider the child-victim’s attributes, information regarding the testifying witness,

information regarding the statement, corroborating evidence, and other considerations.

Section 46-16-220, MCA.

¶31    In this case, the District Court issued a twelve-page order setting forth its

reasoning regarding the admissibility of S.S.’s hearsay statements. The District Court

noted that the parties had stipulated to S.S.’s unavailability. The District Court adopted

as findings of fact the State’s three “Notice[s] of Intent to Introduce Hearsay Statements,”

which contained detailed descriptions of the hearsay statements.1 The District Court also

concluded that S.S.’s hearsay statements were the most probative evidence because the

crime “left only modest physical evidence.”       The District Court then proceeded to

analyze one-by-one the factors listed in § 46-16-220, MCA:

           1. The Attributes of the Child Hearsay Declarant

              a.     The child’s age: S.S. was approximately three and one-half
              years old when she made the initial statement to her counselor and
              her foster mother.

              b.     The child’s ability to communicate verbally: S.S.’s ability to
              communicate was slightly less than age appropriate and, according
              to her counselor, difficult to understand at times.


       1
        As discussed in ¶ 10, the District Court granted the State’s fourth notice of intent
(filed March 10, 2004) at trial.
                                            11
   c.     The child’s ability to comprehend the statements or questions
   of others: Again, age appropriate, but marginal compared to a typical
   competent witness.

   d.     The child’s ability to tell the difference between truth and
   falsehood: Probably age appropriate.

   e.     The child’s motivation to tell the truth (i.e., whether the child
   understands the general obligation to speak truthfully and not
   fabricate stories): There is no reason to believe that S.S. does not
   love her father or that she would want him to get in trouble.

   f.     Whether the child possessed sufficient mental capacity at the
   time of the alleged incident to receive an accurate impression of it:
   S.S. apparently received an accurate impression of what had
   happened to her, as evidenced by the repetition of similar facts on
   separate occasions, one being with no adults present whatsoever.

   g.     Whether the child possesses sufficient memory to retain an
   independent recollection of the events at issue: S.S. repeated the
   allegations several times.

2. The Witness Relating the Hearsay Statement.

   a.     The witness’s relationship to the child: The witnesses who
   would testify about their conversations with S.S. are her foster
   mother and her counselor. There is also an audiotape which is not
   altogether clear.

   b.     Whether the relationship between the witness and the child
   might have an impact on the trustworthiness of the hearsay
   statement: This seems very unlikely given the manner and timing of
   the various statements; emphasizing again that the same facts were
   revealed in circumstances where the child did not know an adult was
   present.

   c.      Whether the witness might have a motive to fabricate or
   distort the child’s statement: No, neither the counselor nor the foster
   mother showed any animosity to the father and genuinely appeared
   to want to represent the statements as accurately as possible.

   d.    The circumstances under which the witness heard the child’s
   statement, including the timing of the statement in relation to the

                                  12
   incident at issue and the availability of another person in whom the
   child could confide: The first statement was made at an unknown
   time after the crime. By clear and convincing evidence, this Court
   finds and concludes that the child’s counselor maintained a strict
   patient-counselor relationship and at no point did this counselor
   become an interrogator or interviewer. She was first, foremost and
   always a therapist. Given that, the child’s revelation to Ms. Moffatt
   is deemed by this Court to have been at a reasonable time after the
   incidents and that no one else was available for such revelation
   except the foster mother.

   The Court wants to specifically note that it has had frequent recourse
   to the testimony of Ms. Moffatt. Not only is she highly credible,
   reliable and professional, there are few witnesses whose testimony
   this Court would deem more trustworthy.

   While the Court finds and concludes that the revelations to the foster
   mother also were made in reasonable relation to the incidents and
   that she was clearly one of the few people in this child’s life she
   could trust or could make such statements to, the indicia of
   reliability is even higher here. As noted above, the foster mother
   overheard S.S. tell her 1½ year old sister, “Lay down, this won’t
   hurt, this is how Kirk does it.” The circumstances of that revelation
   bear a very high indicia of reliability.

3. The Statement Itself.

   a.      Whether the statement contains knowledge not normally
   attributed to a child of the declarant’s age: It is unknown whether a
   child of S.S.’s age would typically be able to conceive of having her
   private parts licked or probed. It would be the height of irrationality
   to deem it otherwise.

   b.     Whether i t was volunteered spontaneously: The initial
   statements to the counselor and the foster mother were volunteered.
   The subsequent statements were also volunteered. The statements
   were each and all highly similar. These were not interviews or
   interrogations which gave rise to the statements.

   c.     The suggestiveness of prior statements by the witness relating
   the statement or third parties present when the statement was made:
   This Court specifically rejects any contention that there was
   suggestion implanted prior to any of these statements or that the

                                 13
             presence of a third person might have stimulated them – there was
             no third person.

             d.    If statements were made by the child to more than one person
             and were very consistent.

          4. Other Considerations

             The particular facts of a case may present the court with
             considerations other than those outlined above that in the court’s
             judgment will bear on the admissibility of the proffered testimony:
             It is inconceivable that a child of 3½ would have the sexual
             knowledge and behaviors exhibited here. That is a persuasive
             consideration. Exceptionally persuasive was the statement made by
             S.S. to her sister and overheard by her foster mother. Reflecting as it
             did the precise statements made at other times to both the foster
             mother and the counselor, this constitutes a fundamental
             consideration which leads this Court to conclude that the statements
             of S.S. have particularized guarantees of trustworthiness. Cross-
             examination of S.S. about these statements would be of decidedly
             marginal utility and would in fact be destructive of the very fragile
             psyche of this young child.

¶32   After considering all the factors required by statute, the District Court determined

that S.S.’s statements were admissible through Ms. Moffatt’s and Lisa Weaver’s

testimony. Though the District Court did not specifically label a heading “findings of

fact” and “conclusions of law,” we cannot say that the District Court acted arbitrarily,

without employing conscientious judgment, or that its decision exceeded the bounds of

reason and resulted in substantial injustice. Matz, ¶ 34. We hold that the District Court

adequately complied with § 46-16-220, MCA, and did not abuse its discretion in

admitting S.S.’s hearsay statements.

¶33   We note further that the District Court did not discuss the “corroborating

evidence” factors in light of our holding in State v. S.T.M. that corroborating evidence


                                           14
could no longer be considered in assessing a hearsay statement’s reliability. 2003 MT

221, ¶ 34, 317 Mont. 159, ¶ 34, 75 P.3d 1257, ¶ 34. We decided S.T.M. prior to

Crawford and our holding was based on the Supreme Court’s decision in Idaho v. Wright,

497 U.S. 805, 110 S. Ct. 3139 (1990). We removed the corroborating evidence factor

because we could not “conceive of a case in which the admission of the hearsay

statements of an alleged victim of child sexual abuse would not implicate the

Confrontation Clause as well as the rule against hearsay.” S.T.M., ¶ 34. The Supreme

Court’s rulings in Crawford and Davis recently have clarified that the Confrontation

Clause only applies to testimonial statements; thus, it is now entirely conceivable that a

hearsay statement that fails to implicate the Confrontation Clause may nevertheless be

inadmissible hearsay. Davis, ___ U.S. at ___, 126 S. Ct. at 2274-75. However, the

“corroborating evidence” factor does not affect the case before us; the District Court’s

lack of “corroborating evidence” analysis could only advantage Spencer because the

District Court did not consider as evidence S.S.’s and R.S.’s physical injuries discovered

by Dr. Gerrity. Thus, we leave for another day an analysis of S.T.M.’s continued vitality.

In light of Crawford, however, we note that courts must again consider Confrontation

Clause and hearsay challenges independently, contrary to our announcement in S.T.M.,

¶ 22.

¶34     III   Did the District Court err in excluding Dr. Scolatti’s videotaped

testimony?

¶35     Spencer claims that the District Court erred in excluding Dr. Scolatti’s videotaped

testimony in which Dr. Scolatti stated that Spencer lacked the diagnostic criteria of a

                                            15
pedophile. Spencer argues that Dr. Scolatti’s testimony served to rebut the mental state

element of sexual intercourse without consent. Spencer directs us to § 46-14-213(2),

MCA, in support of his contention:

          When a . . . licensed clinical psychologist . . . who has examined the
          defendant testifies concerning the defendant’s mental condition, the . . .
          licensed clinical psychologist . . . may make a statement as to the nature
          of the examination and the medical or psychological diagnosis of the
          mental condition of the defendant.

¶36    Spencer’s reliance on § 46-14-213(2), MCA, is misplaced. When read in its

proper context, § 46-14-213, MCA, applies only if mental disease or defect is an issue or

if a defendant’s fitness to proceed is in question. Section 46-14-213, MCA. Our review

of the record reveals neither of these issues exists.

¶37    The District Court excluded Dr. Scolatti’s testimony as improper character

evidence under M. R. Evid. 404. Though we note that Rule 404 contains an exception

that allows a defendant to offer pertinent character evidence, we cannot say the District

Court excluded Dr. Scolatti’s testimony arbitrarily, or without employing conscientious

judgment, or that its decision exceeded the bounds of reason and resulted in substantial

injustice. Matz, ¶ 34.

¶38    Spencer argues on appeal, as he did below, that Dr. Scolatti’s testimony served to

generally rebut the mental states of purposely and knowingly. The District Court rejected

this contention, stating that the testimony was “distinctly not about the Defendant’s

mental condition but about his not being a member of a diagnostic group – pedophiles.”

The District Court concluded:



                                              16
       Defendant argues that because he was diagnosed as not being a pedophile,
       he could not have the requisite intent. That clearly was a matter for the
       province of the jury. Given that the “diagnostic criteria” here was less a
       diagnosis of mental condition and more whether the Defendant was or was
       not includable in that grouping called pedophiles and thus whether he could
       or could not exhibit behaviors of members or non-members of that class, it
       would be impermissible testimony before the jury.

¶39    Our review of Dr. Scolatti’s testimony supports the District Court’s conclusion

that such testimony would be improper in this case. Moreover, we question the relevance

of Dr. Scolatti’s testimony and whether it could have assisted the trier of fact.

¶40    Though Dr. Scolatti conducted a number of tests and psychological evaluations,

much of his testimony focused on the Abel Assessment for Sexual Interest test (the Abel

test). The Abel test consists of two-parts: (1) a questionnaire focusing on a variety of

areas including demographics, sexual-interest, social desirability, and the problematic

thinking of sex offenders; and (2) a test measuring the visual reaction time to a series of

slides that feature various gender and age categories. In his testimony, Dr. Scolatti stated

that the Abel test is controversial among researchers and that he thought the test could be

“beaten.” He also stated that, when applied to an existing offender group, the Abel test

identified child molesters “with different levels of success.”

¶41    Dr. Scolatti further testified that Spencer did not have the diagnostic criteria of a

pedophile based, in part, on the fact that “Spencer . . . did not tell me he had any sort of

sexual interest pattern or sexual interest or arousal to children in fantasy.” Finally, Dr.

Scolatti observed that not all people who commit sex crimes have a deviant interest

pattern and that a person could fail to meet the criteria of a pedophile yet still sexually

abuse a child. We conclude that whatever relevance Dr. Scolatti’s testimony may have

                                             17
possessed, the dangers of confusing the issues or misleading the jury substantially

outweighed its probative value, and thus it ran afoul of M. R. Evid. 403. We will uphold

a district court’s correct decision even if its reasoning was incorrect. State v. Rensvold,

2006 MT 146, ¶ 34, 332 Mont. 392, ¶ 34, 139 P.3d 154, ¶ 34. Based on our review of the

District Court order and Dr. Scolatti’s testimony, we hold that the District Court acted

within its discretion in excluding Dr. Scolatti’s testimony.

                                     CONCLUSION

¶42    We conclude that S.S.’s statements were non-testimonial and did not implicate

Spencer’s Sixth Amendment right to confrontation. Additionally, the District Court did

not abuse its discretion in admitting S.S.’s hearsay statements and excluding Dr.

Scolatti’s testimony. We affirm the District Court’s judgment.




                                                  /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




                                             18
