                               No. 86-581
               IN THE SUPREKE COURT OF THE STATE OF MONTANA

                                     1987



STATE OF MONTANA,
                Plaintiff and Respondent,
       -vs-

J M E S NEIL HEDRICK,

                Defendant and Appellant.




APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Eilly B. Miller, Great Falls, Montana
       For Respondent:
                Hon. Mike Greely, Attorney General, Helena, Montana
                Kimberly Kradolfer, Asst. Atty. General, Helena
                Patrick I,. Paul, County Attorney, Great Falls, Montana



                                     Submitted on Briefs:            Aug. 27, 1987
                                            Decided:   November 10, 1987




                        _----I _ _ - - __                 - -- - - - -   ---   ^ -

                                     clerk
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.

     Defendant James Neil Hedrick was convicted of the
separate offenses of sexual assault, G, 45-5-502, MCA, and
deviate sexual conduct,    45-5-505, MCA.  Defendant appeals
these convictions. We affirm.
     The issues on appeal are:
     1. Did the District Court err in failing to grant
defendant's motion for mistrial based upon jury misconduct?
     2. Did the District Court err in failing to grant
defendant's motion     for  mistrial   based  upon   tainted
identification evidence?
     3.   Did the District Court err in failing to grant
defendant's motion for dismissal pursuant to 5 46-16-403,
MCA, based upon insufficient identification evidence?
      On August 8, 1985, the defendant, James Neil Hedrick
pled not guilty to the felony counts of sexual assault and
deviate sexual conduct.     On May 6, 1986, a Cascade County
jury found the defendant guilty cf the separate offenses
involving two victims.
      The 5 year old victim of the sexual assault was
assaulted while visiting the home of her grandparents on June
16, 1985. The defendant was also visiting the grandparents'
home.     At trial the victim was unable to identify the
defendant as the person who assaulted her, she did testify
that "Jim" had assaulted her. Both the victim's mother and
grandmother identified the defendant as the Jin; that was
visiting that afternoon.
      The 6 year old victim of the deviate sexual conduct, his
brother, age 5, and another child, age 11, (hereinafter
witness) were approached on July 14, 1985 by a man named Jim
who offered tc buy them pop and candy while iri the park. The
victim testified that the man named Jim took him to a wooded
area and there engaged in the deviate sexual conduct.     On
July 26, 1985 officer Robert Dykeman of the Great Falls
Police Department conducted a photographic lineup. Both the
victim and his brother identified the defendant, James Neil
Hedrick, as the perpetrator of the crime.     At trial, the
victim, his brother an2 the witness could not identify the
defendant as the man in the park.      After testifying, the
victim and his brother found their mother in the hallway.
Their mother testified that the children could, but were too
frightened to identify the defendant. She testified that she
told the victim that it was very important for him to
identify the defendant. The victim once again took the stand
and positively identified the defendant.
     The defense moved for a mistrial on the grounds that the
victim's identification of the defendant was so tainted as to
deny the defendant due process.       The court allowed the
victim's mother to testify and allowed the defense an
opportunity to cross-examine her.      During the subsequent
hearing on the motion the defendant asserted that he saw some
jurors talking to the victim and his brother.
     The court denied the motion for mistrial holding that
the conversation between the victim and his mother was a
matter of witness credibility. Subsequent defense motions on
the grounds of jury misconduct and insufficient evidence of
identification were also denied.
     The standard of review for overturning a district
court's ruling on a mistrial was stated in State v. Counts
(Mont. 1984), 679 P.2d 1245, 1248, 41 St.Rep. 681, 686,
quoting Schmoyer v. Bourdeaux (1966), 148 Mont. 340, 343, 420
P.2d 316, 317-18, "V?e hold that once the District Court has
considered the matter, however it is raised, whether on a
question for mistrial or motion for a new trial this Court
will not lightly disturb that ruling. To overthrow it this
court must be shown by evidence that is clear, convincing,
and practically free from doubt, of the error of the trial
court's ruling."   In order to overturn the District Court's
denial of the mistrial motion based upon jury misconduct the
defense must produce clear and convincing evidence that the
District Court erred in denying the mistrial motion.
     The only evidence of jury misconduct is the defendant's
statement that he saw some jurors talking to the victim and
his brother. This evidence does not meet the standard set in
State v. Dickens (1982), 198 Mont. 482, 647 P.2d 338 for
demonstrating prejudice to the defendant. The facts in
Dickens are similar to the facts of this case. In Dickens,
evidence existed that there was communication between a
witness and a juror, but no evidence demonstrated any
prejudice to the defendant:

    The first instance of alleged misconduct took
    place, according to the appellant, during the trial
    when several members of the jury were seen, by
    several of appellant's witnesses facing some of the
    prosecution's witnesses and moving their mouths.
    It is not clear from the record whether any
    conversation   was   actually    heard,    but   the
    appellant's witnesses did testify during the motion
    for   a   new  trial   that   it   'appeared'   some
    communication took place.   . . .    [Tlhis type of
    communicaticn, a possibility at best, is not
    sufficient reversible error.        In Turner v.
    Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13
    L.Ed.2d 424, a case cited as controlling on this
    issue by appellant, the United States Supreme Court
    held that a verdict can be reversed if it can be
    shown that communications of a dubious nature takes
    [sic] place between prosecution witnesses and
    jurors. A review of the facts in Turner reveals
    that what consisted of reversible error there is a
    far cry from what transpired in the present case.
    In Turner, the two key prosecution witnesses were
    deputy sheriffs who were also in charge of the
    jurors. The Court noted:
            .    . .   We deal here not with a brief
          encounter, but with a continuous and intimate
          association throughout a three-day trial--an
          association which gave these witnesses an
          opportuni-ty, as Simmons (one of the deputies)
          put it, to renew old friendships and make new
          acquaintances among the members of the jury.'
          8 5 S.Ct. at 5 5 0 .
     There is a distinction drawn by the United States
     Supreme Court between a 'brief encounter' and an
     'intimate association' and that distinction is
     applicable here. At best, the record reflects some
     innocuous type of conversation       . .    . There was,
     quite simply, not enough evidence presented by
     appellant to warrant a new trial. Charlie v. Foos
     (1972), 1 6 0 Mont. 403, 5 0 3 P.2d 5 3 8 .
Dickens,
--
 -         6 4 7 P.2d    at 341-42.  The defendant cannot produce
any evidence that he was prejudiced or that the contact
between the jurors and the victim and his brother was
anything more than a brief, innocuous encounter. There is no
evidence to warrant a mistrial based upon jury misconduct,
thus the District Court did not err when it refused to grant
a mistrial.
     The defense claims that the District Court erred when it
allowed the victim of the deviate sexual conduct to identify
the defendant after speaking with his mother.            The defense
moved for mistrial on the grounds that the evidence was so
tainted as to deny the defendant due process.               The same
standard of review for the District Court's refusal to grant
a mistrial in the previous issue applies here. The defense
must demonstrate clear and ccnvincing evidence that the
identificatior, techniques, the victim's encounter with his
mother and subsequent testimony, produced a substantial
likelihood of irreparable misidentification. State v. Bauer,
(Mont. 1 9 8 6 ) , 6 8 3 P.2d 946, 41 St.Rep. 1 0 6 6 . The District
Court held that the incident went to the weight of the
evidence and was best left tc the determination of the jury.
     The defendant's remedy for questionable identification
techniques  is   cross-examination.     The  identification
technique must be flagrantly suggestive before evidence is
suppressed. This Court stated in State v. Miner (1976), 169
Mont 260, 266, 546 P.2d 252, 256, "Therefore, unless the
error is obvious and the prejudice clear, the defendant's
remedy   is   in   effective  cross-examination with    the
identification question then becoming one of weight to be
determined by the jury and not one of admissibility."
Neither the error nor the prejudice is obvious here. The
defense was given the opportunity to cross-examine both the
victim and his mother. It is quite possible that the victim
could, but was afraid to identify the defendant and that his
mother merely stressed the importance of identifying the
perpetrator and urged the child to set aside his fears. The
jury was free to believe the testimony to this effect.
     The independent basis for the victim's         in court
identification also prevents the possibility of a substantial
likelihood of irreparable misidentification.    The criteria
for evaluating the likelihood of misidentification are:

    (1) opportunity of the witnesses to view the
    criminal at the time of the crime; (2) the witness1
    degree of attention; (3) the accuracy of the
    witness' prior description of the criminal; (4) the
    level of certainty demonstrated by the witness at
    the confrontation; and (5) the length of time
    between the crime and the confrontation.
Bauer, 683 P.2d at 949.     The victim in this case had the
opportunity to view the defendant and surely was attentive.
The victim also successfully identified the defendant 12 days
after the incident from a photographic lineup.
     With the opportunity to cross-examine both the victim
and his mother and satisfaction of many of the -
                                               Bauer criteria
the District Court d l not err when it refused tc grant a
                     il
mistrial and held that the identification question was a
matter of weight to be determined by the jury.
     The defense also asserts that it was error for the
District Court to deny the defense's motion for dismissal
pursuant to S 46-16-403, MCA, based upon the failure of the
state to prove the essential elements of the crime by failing
to produce a witness who could identify the defendant. This
Court will disturb a district court's ruling on a motion to
dismiss only upon a showing of abuse of discretion. State v.
Goltz (1982), 197 Mont. 361, 642 P.2d 1079. The standard for
granting a directed verdict of acquittal was articulated in
State v. Yoss (1965), 146 Mont. 508, 5 1 4 , 409 P.2d 452, 455,
"A directed verdict in a criminal case in this jurisdiction
is given only where the State fails to prove its case and
there is no evidence upon which a jury could base its
verdict."    The State presented the testimony highlighted in
the facts of this opinion that linked the defendant to both
the sexual assault and the deviate sexual conduct. The trial
court did not abuse its discretion when it refused to grant
the defendant's motion to dismiss.
     A £ firmed.




We Concur:     /   /
