                                       No.    89-465

                     IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1990



STATE OF MONTANA,
                    Plaintiff and Respondent,
             -vs-
ALAN BARRY HENDERSON,
                    Defendant and Appellant.



APPEAL FROM:               District Court of the Eighth Judicial District,
                           In and for the County of Cascade,
                           The Honorable Joel Roth, Judge presiding.


COUNSEL OF RECORD:
                    For Appellant:
                           Billy B. Miller, Great Falls, Montana
                    For Respondent:

                    , --
                           Hon. Marc Racicot, Attorney General, Helena, Montana
     o                     Patrick Paul, Cascade County Attorney, Great Falls,
    CT;r                   Montana
    . ._ 3

                           Tammy Plubell , Deputy,Great Falls, Montana
    t   -3




                                         Submitted on Briefs:     April 5, 1 9 9 0
                                                       Decided: May 1, 1 9 9 0
Justice William E. Hunt, Sr., delivered the Opinion of the Court.


     On May 2, 1989, a jury empaneled in the District Court of the
Eighth Judicial District, Cascade County, found the defendant and
appellant, Alan B. Henderson, guilty of the charge of sexual
assault, a felony, in violation of § 45-5-502, MCA. The District
Court sentenced the defendant to the Montana State Prison for a
period of twenty years.     The defendant was designated a "non-
dangerousIt offender.   Ten years of the sentence were suspended
provided that the defendant follow certain conditions prescribed
by the Court. The defendant was given credit for time served.
The defendant appeals his conviction. We affirm.
     The sole issue presented on appeal is whether the defendant
was denied his constitutional right to effective assistance of
counsel.
     In the early evening of May 1, 1988, Susan Santiago took her
two children, Anthony and Aaron, to the home of Annette Daniels,
the defendant's sister. At the time Anthony was six years old and
Aaron was nineteen months old. Annette's two children, Pierre
Poitra, age 13, and Daniel Henderson, age 14, were to babysit the
Santiago children that evening. Annette and her boyfriend, Will,
were not home that evening.
     It is unclear from the testimony of the witnesses what exactly
happened that evening. However, the following day, one of the
babysitters, Pierre, approached Susan and asked her if Anthony had
told her anything. After discussing the matter with Pierre, Susan
called the Great Falls Police Department and then asked her son,
Anthony, what had happened at the Daniels1 home the prior evening.
     Anthony told Susan that while he was at the Daniels1 home, the
uncle of Pierre and Daniel, the defendant, had visited. While
there, the defendant allegedly had taken Anthony down into the
basement of the home where he forced Anthony to perform oral sex.
     At trial, Anthony took the stand and testified as to the
defendant's alleged activities.      Anthony testified that the
defendant stopped at the Daniels1 home that evening. While the
defendant, Anthony, Pierre and Aaron were watching television, the
defendant asked Anthony to accompany him to a bedroom. In that
bedroom, the defendant and Anthony looked at "dirty or nastytt
magazines. After a while, the defendant asked Anthony to accompany
him into the basement. In the basement Anthony testified that the
defendant pulled down Anthony's pants and did the same to his own.
The defendant then forced Anthony to perform oral sex. Anthony
testified that after the alleged incident the defendant told
Anthony to say that they had just gone for a walk around the block.
The defendant and Anthony then left through a back door and
reentered the home through the front door.
     Pierre testified that most of the evening was spent watching
television in the living room.       He also testified that the
defendant had stopped by the home that evening but was never alone
with Anthony.
     Daniel testified that most of the evening was spent watching
television in the living room.       He also testified that the
defendant stopped by that evening but was only alone with Anthony
for approximately five minutes. During these five minutes the
defendant and Anthony left together through the front door.
     The defendant took the stand on his behalf and testified that
he was not at the home of Annette Daniels that evening and,
therefore, could not have sexually molested Anthony. He testified
that the entire evening he was drinking at the home of another
sister, Silvia Gardipee.      His whereabouts that evening was
supported by Silvials testimony and the testimony of Annette
Daniels, who was allegedly at Silvialshome that evening as well.
       On May 1, 1988, after listening to all of the testimony,
the jury convicted the defendant of sexual assault.
     The only issue on appeal is whether the defendant's
constitutional right to effective assistance of counsel was
violated. The defendant argues that his counsel did not protect
his constitutional right by failing to pursue Pierre's testimony
that defendant was never alone with Anthony the evening of May 1,
1988. However, the defendant has not shown that, in light of all
the facts of this case, the failure by counsel to pursue this
testimony was prejudicial to his defense, thereby violating his
constitutional right.
       A defendant is guaranteed the right to effective assistance
of counsel by the constitutions of both the United States and
Montana. U.S. Cont. Amend. VI; Mont. Const. Art. 11, 5 24 (1972).
The case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984) established the federal standard against
which the protection of this right is evaluated. We adopted this
federal standard in the case of State v. Hurlbert, 232 Mont.115,
7 5 6 P.2d 1110 (1988). The standard adopted in Hurlbert is whether
"counsel s performance was deficient and    ... that the deficient
                                                           .
performance prejudiced the defense. Hurlbert, 232 Mont at 119,
7 5 6 P.2d at 1112-1113, citing Strickland. In State v. Coates, 7 8 6
P.2d 1182, 47 St.Rep. 328 (Mont. 1990), this Court discussed how
to implement this standard:

     First...to assess deficient performance, this Court
     employs the "'reasonably affective assistance1 test of
     whether a defendant's counsel acted within the range of
     competence demanded of attorneys in criminal cases.I1
     (Citations omitted.)      Second, counsel's deficient
     performance must have so prejudiced the defendant as to
     deprive the defendant of a fair trial. (Citations
     omitted. )  The standard for evaluating prejudice is
     whether a reasonable probability exists that but for
     counsel's deficient performance, the trial's outcome
     would have been different.
Coates, 786 P.2d at 1185, 47 St.Rep. at 332.
     Generally, trial tactics are not sufficient to show deficient
performance.   Hurlbert, 232 Mont. at 120, 756 P.2d at 1113.      In
this case, it is evident from the record that defense counsel made
a tactical decision to pursue the alibi defense and to limit
discussion of Pierre's testimony to her closing.
     Defense counsel called Annette Daniels, Silvia Gardipee, and
the defendant to support the alibi defense that the defendant was
not at the Daniels1 home the evening of May 1, 1988. Each witness
was questioned in depth.     Later in the trial, the conflicting
testimony of the two babysitters, Pierre and Daniel, was argued by
defense counsel in her closing.       Defense counsel chose, as a
tactical matter, to bring these conflicts to the awareness of the
jury in her closing argument rather than through cross-examination.
In her closing, defense counsel argued that the jury must consider
Pierre's testimony that the defendant and Anthony were never alone
together.   Defense counsel argued:

    The state would have you believe parts of their
    witnesses' testimony and not others, such as, you know,
    the state's witness, Pierre Poitra.        He was not
    absolutely sure of the date. He was sure that Alan
    rdefendantl was not in the bedroom with Anthonv. And
    you will recall that Anthony said he was in the bedroom
    with this person looking at dirty magazines before he
    took him in the basement.  ...  While Pierre is related
    to Daniel Henderson, Pierre has nothing to gain or lose
    from the outcome of this case. He indicated to you that
    he didn't believe his brother Daniel was there at the
    time. Daniel also indicated to you he was not real sure
    of the date. He was positive that his uncle did not go
    in the bedroom with Anthony Sanitago.      And he also
    indicated that his uncle had been there briefly.
    (Emphasis added.)
     Further, defendant has not shown that defense counsel's
failure to question Pierre prejudiced his defense.   In Coates, as
in this case, the defendant argued that defense counsel failed to
properly question witnesses. This court rejected Coates' argument
   stating:

     Although appellant argues that Mr. Goldman should have
     asked certain questions, appellant again fails to
     establish exactly how those questions would have
     materially assisted his defense.
Coates, 786 P.2d at 1186, 47 St.Rep. at 334.
     In this case, defendant has also failed to show how the
questions he feels should have been asked by defense counsel would
have materially assisted his case.       Defense counsel actively
pursued the alibi defense.      Defense counsel referred to the
testimony of the two babysitters in her closing and emphasized
that, although both babysitters stated that the defendant was at
the Daniels' home the evening of May 1, 1988, they also stated that
the defendant was never alone with Anthony.     The only testimony
that directly incriminated the defendant was the testimony of the
victim, Anthony.    The jury chose to give this testimony great
weight in reaching their decision. See generally State v. Roberts,
   Mont.   -,   633 P.2d. 1214, (1981), where the jury resolved the
issue of conflicting evidence by giving the State's witnesses
greater credibility.
     There is no support for the defendant's contention that the
further questioning of Pierre by defense counsel would have altered
the jury's emphasis on Anthony's testimony given. Further, defense
counsel did argue the discrepancies in Pierre's testimony to the
jury. The facts of this case indicate that additional questioning
of Pierre by defense counsel would not have materially altered the

trial's outcome.
    Affirmed.




We Concur:




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