97-280




                                                                           No. 97-280

                                        IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                          1998 MT 86N



                                                                    STATE OF MONTANA,

                                                            Plaintiff and Respondent,

                                                                                    v.

                                                                  CLARK MARTIN SMITH,

                                                             Defendant and Appellant.




                     APPEAL FROM:                   District Court of the Fourth Judicial District,
                                                           In and for the County of Missoula,
                                                     The Honorable John W. Larson, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                       For Appellant:

                                  Terry Wallace, Attorney at Law, Missoula, Montana

                                                                      For Respondent:

                          Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,
                                 Assistant Attorney General, Helena, Montana

                               Robert L. Deschamps, III, Missoula County Attorney,
                              Betty Wing, Deputy County Attorney, Missoula, Montana


                                              Submitted on Briefs:                          January 15, 1998

                                                            Decided:             April 17, 1998
                                                                               Filed:

                                 __________________________________________
                                                    Clerk
                          Justice Karla M. Gray delivered the Opinion of the Court.

   ¶1        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (1 of 9)4/25/2007 4:32:42 PM
 97-280


Operating Rules, the following decision shall not be cited as precedent but shall be
                                       filed as
 a public document with the Clerk of the Supreme Court and shall be reported by case
                                        title,
 Supreme Court cause number, and result to the State Reporter Publishing Company and
                                          to
      West Group in the quarterly table of noncitable cases issued by this Court.

¶2   Clark Martin Smith (Smith) appeals from the judgment and sentence entered by the
Fourth Judicial District Court, Missoula County, on his conviction of the offenses
of sexual
assault and felony assault. We affirm.

¶3        We address the following restated issues on appeal:

¶4   1. Did the District Court abuse its discretion in prohibiting Smith's expert
from
observing the victim's testimony and from opining on the victim's credibility?

¶5        2.    Does sufficient evidence support the convictions?

¶6   3. Did the District Court punish Smith at sentencing for exercising his
constitutional
right to a trial?
                           BACKGROUND

¶7   The State of Montana (State) charged Smith with sexual assault, sexual
intercourse
without consent and felony assault. Smith pleaded not guilty and waived his right
to a trial
by jury.

¶8    At the start of the bench trial, the State moved to exclude all witnesses.
Smith
objected to the exclusion of his expert, contending that he needed her in the
courtroom to
assist in interpreting the witnesses' testimony. The District Court overruled the
objection,
all witnesses were excluded, and the trial began.

¶9   The State's evidence indicated that all of the charged offenses involved
improper acts
by Smith committed on his minor daughter (hereafter, the victim). The victim
testified at
trial that Smith yelled at her and held a gun to her head, "really scar[ing]" her.
He touched
her buttocks and vagina while she watched TV, sometimes with his penis but more often
with his hand. Smith's counsel did not cross-examine the victim. A social worker
testified
that the victim reported the offenses to her, accusing her father and not her
mother's current

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (2 of 9)4/25/2007 4:32:42 PM
 97-280


boyfriend.

¶10 After the State rested its case, Smith moved for a directed verdict of
acquittal and the
District Court denied the motion. Smith then called Dr. Susan J. Sachsenmaier
(Sachsenmaier) as an expert witness. She had been disclosed as Smith's expert
witness
earlier and her summary report had been provided to the State. Sachsenmaier
testified that
she had developed a specialty in the investigation of child sex abuse allegations
and outlined
her experience in that subject area, including her background in a purportedly
scientific
methodology of obtaining and evaluating children's statements relating to alleged
sexual
offenses called Statement Validity Analysis (SVA). According to Sachsenmaier, the
SVA
offers a numerical probability of the child's credibility missing from other methods
of
assessing credibility. Thereafter, Smith moved the admission of Sachsenmaier's
report and
the State voir dired at length. The State then objected to Sachsenmaier's report and
testimony on the basis of the absence of any attack on the victim's credibility and
lack of
foundation for the SVA because it cannot be tested scientifically or empirically
and the free
narrative interview Sachsenmaier testified was necessary for application of the SVA
never
occurred in this case.

¶11 The District Court refused to admit Sachsenmaier's report and any testimony
about
the SVA, in part because the victim had not been cross-examined and, therefore, her
credibility had not been put into issue. The District Court did deem Sachsenmaier
an expert
on generic issues involving the interviewing and characteristics of children
reporting sexual
abuse, but disallowed any testimony about the victim in this case. Thereafter,
Sachsenmaier
testified at length on both direct and cross-examination.

¶12 Smith testified on his own behalf. He denied pointing a gun at the victim,
denied her
allegations of improper sexual contact and, indeed, denied being alone with her over
the
previous four years.

¶13 After both parties had rested their cases, the District Court acquitted Smith
of the
sexual intercourse without consent charge and found him guilty of sexual assault and
felony
assault. It sentenced him to consecutive twenty- and five-year terms of

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (3 of 9)4/25/2007 4:32:42 PM
 97-280


imprisonment on the
two convictions and suspended most of the terms of imprisonment on stated terms and
conditions. Smith appeals.

                                                        DISCUSSION

¶14 1. Did the District Court abuse its discretion in excluding Smith's expert from
observing the victim's testimony and from opining on the victim's credibility?

¶15 Our standard in reviewing a district court's rulings on both exclusion of
witnesses and
evidentiary matters is whether the court abused its discretion. State v. McKeon
(1997), 282
Mont. 397, 403, 938 P.2d 643, 646; State v. Claric (1995), 271 Mont. 141, 147, 894
P.2d
946, 950.

¶16 Smith advances several arguments with regard to the District Court's exclusion
of his
expert from observing the victim's testimony and opining on the victim's
credibility. We
need address them only briefly.

¶17 Rule 615, M.R.Evid., authorizes the exclusion of witnesses from the courtroom
upon
the request of a party; the Rule also sets out three categories of witnesses who may
be
excepted from exclusion. Smith contends that, under the exclusion contained in Rule
615(3),
M.R.Evid., Sachsenmaier's presence was "essential to the presentation of [his] cause"
because he needed her to help him prepare to cross-examine the victim. The record
reflects,
however, that Smith's objection to the State's motion to exclude witnesses was a
general one
which stated only that he needed an expert's help in "interpreting the witnesses'
testimony."
He did not advise the trial court at the time of the State's motion to exclude that
Sachsenmaier's presence was needed to help in preparing cross-examination of the
victim
and, therefore, he did not make a showing that Sachsenmaier's presence was essential
as
required by Rule 615(3), M.R.Evid. Moreover, "[i]t is axiomatic that a party may
not change
the theory on appeal from that advanced in the district court." State v. Henderson
(1994),
265 Mont. 454, 458, 877 P.2d 1013, 1016 (citation omitted).   We conclude that the
District
Court did not abuse its discretion in excluding Smith's expert from the courtroom
during trial.

¶18       Next, Smith argues that the victim's credibility had been attacked before his


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (4 of 9)4/25/2007 4:32:42 PM
 97-280


expert
testified and that the District Court erred in determining otherwise simply because
Smith had
not cross-examined the victim. Therefore, according to Smith, the absence of an
earlier
attack on the victim's credibility was an improper basis for excluding
Sachsenmaier's expert
opinion on the victim's credibility. We disagree.

¶19 The threshold test for determining whether an expert witness may testify
directly
about a child sexual abuse victim's credibility is "that the child victim must
testify and the
child's credibility must be attacked." State v. Steffes (1994), 269 Mont. 214, 228,
887 P.2d
1196, 1204 (citation omitted). Here, while Smith asserts on appeal that he had
attacked the
victim's credibility prior to calling Sachsenmaier as a witness, he took the
opposite position
in the District Court. Indeed, he expressly conceded that he had not yet attacked
the victim's
credibility, but intended to do so via Sachsenmaier, as indicated by the following
colloquy
between the trial court and Smith's counsel:
     THE COURT: Can you tell me where in this case you have attacked the
     credibility of the child to date?

          MR. WALLACE: I haven't been allowed to -- I intended to attack the child's
          credibility with this witness.

          THE COURT: With this witness.                                    That's where you first tried to attack the
          credibility of the [victim].

          MR. WALLACE:               That's right.

¶20 Smith having conceded at trial that he did not satisfy the threshold test for
admitting
an expert's opinion about a child sexual abuse victim's credibility, he cannot now
change his
theory on appeal by arguing that he previously had attacked the victim's
credibility. See
Henderson, 877 P.2d at 1016. We conclude that the District Court did not abuse its
discretion in excluding Sachsenmaier's expert opinion about the victim's credibility
on the
basis that the threshold test for admission of such evidence had not been satisfied.

¶21   Smith also argues that, under United States v. Hicks (9th Cir. 1996), 103 F.3d
837,
the District Court abused its discretion by disallowing Sachsenmaier's SVA evidence
regarding the victim's credibility altogether, even though the evidence may not
qualify as
scientific evidence under Daubert v. Merrell Dow Pharm., Inc. (1993), 509 U.S. 579,

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (5 of 9)4/25/2007 4:32:42 PM
 97-280


113
S.Ct. 2786, 125 L.Ed.2d 469. We need not address this argument, however, since it
presumes that the threshold test for admissibility of an expert's testimony on a
child sexual
abuse victim's credibility was satisfied and it was not.

¶22 Finally, Smith raises--in one sentence--the specter of a due process violation
in
relation to the District Court's exclusion of Sachsenmaier's expert testimony. No
such
arguments were presented to the District Court and, indeed, neither legal analysis
nor
supporting authority is presented to this Court, notwithstanding the requirements of
Rule
23(a)(4), M.R.App.P.   For these reasons, we will not consider this matter
further.

¶23       2.    Does sufficient evidence support the convictions?

¶24 Our standard in reviewing the sufficiency of evidence to support criminal
convictions
is whether, after viewing the evidence in the light most favorable to the
prosecution, any
rational trier of fact could have found the essential elements of the offense beyond
a
reasonable doubt. State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224
(citations omitted). It is for the trier of fact to weigh the evidence presented
and determine
the credibility of witnesses; if conflicting evidence is presented on factual
issues, the trier
of fact determines which will prevail. State v. Flack (1993), 260 Mont. 181, 189,
860 P.2d
89, 94 (citation omitted).

¶25 In this case, the District Court was the trier of fact and convicted Smith of
sexual
assault and felony assault against the minor victim. Smith contends that there is
insufficient
evidence to support either conviction.

¶26 Sexual assault is defined as knowingly subjecting another person to any sexual
contact
without consent. Section 45-5-502(1), MCA. Where, as here, the victim is less than
14
years old and the offender is 3 or more years older, consent does not exist as a
matter of law.
See § 45-5-502(5), MCA. Moreover, "sexual contact" is "any touching of the sexual
or other
intimate parts of the person of another for the purpose of arousing or gratifying
the sexual
desire of either party." Section 45-2-101(65), MCA.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (6 of 9)4/25/2007 4:32:42 PM
 97-280


¶27 Here, the victim testified that Smith touched her buttocks and vagina with his
hand
inside her jeans while they watched TV together on a number of occasions and that he
touched her vagina with his penis more than once. This testimony by the victim is
sufficient
to prove the knowing touching of sexual or other intimate parts element of the
offense; it
need not be corroborated. State v. Little (1993), 260 Mont. 460, 477, 861 P.2d 154,
165
(citations omitted). Moreover, with regard to the "purpose" element, the finder of
fact may
infer the defendant's intent or purpose from the acts themselves. State v. Riley
(1995), 270
Mont. 436, 441, 893 P.2d 310, 314. Thus, the District Court, as the finder of fact,
could
reasonably infer that Smith's acts were done for the purpose of sexual
gratification.

¶28 Smith argues that the victim's testimony was vague, unconvincing and
indecisive.
This argument, however, goes to the weight of the testimony and questions of weight
and
credibility are for the finder of fact, not this Court. See Flack, 860 P.2d at 94.

¶29 We conclude that, viewing the evidence in the light most favorable to the
prosecution,
any rational trier of fact could have found the essential elements of the offense of
sexual
assault beyond a reasonable doubt. We hold, therefore, that sufficient evidence
supports
Smith's conviction of that offense.

¶30 With regard to the felony assault conviction, that offense is committed if a
person
purposely or knowingly causes reasonable apprehension of serious bodily injury in
another
by use of a weapon. See § 45-5-202(2)(b), MCA. The victim's testimony on this
charge was
that she arrived at Smith's house yelling that she wanted to go to her mom's house,
laid on
the bed and started watching TV; Smith came out with a gun and held it to her head,
yelling
at her, and "I was really scared."

¶31 As he did above, Smith contends that this testimony is vague and not entitled
to belief.
He also asserts that it is insufficient to establish that the victim was placed in
reasonable
apprehension of serious bodily injury. We disagree, observing again that matters
going to
the weight of the evidence and the credibility of the witnesses are within the


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (7 of 9)4/25/2007 4:32:42 PM
 97-280


province of the
trier of fact. See Flack, 860 P.2d at 94. Moreover, testimony that a minor child
was "really
scared" when a gun was held to her head by a man yelling at her is sufficiently
indicative that
she was apprehensive of serious bodily injury.

¶32 We conclude that, viewing the evidence in the light most favorable to the
prosecution,
any rational trier of fact could have found the essential elements of the offense of
felony
assault beyond a reasonable doubt. We hold, therefore, that sufficient evidence
supports
Smith's conviction of that offense.

¶33 3. Did the District Court punish Smith at sentencing for exercising his
constitutional
right to a trial?

¶34 The District Court sentenced Smith to 20 years for the sexual assault, with 10
years
suspended, and a consecutive 5-year term for the felony assault, which also was
suspended.
Smith contends that he received a prison sentence because he exercised his right to
trial and,
therefore, that his due process rights were violated.

¶35 The sentencing parameters for the offense of sexual assault on a victim less
than 16
years old, where the offender is more than 3 years older, are life imprisonment or
imprisonment for a term of not less than 2 years or more than 100 years.
Section 45-5-502(3), MCA. The sentencing parameters for the offense of felony
assault
are imprisonment for a term not to exceed 10 years. Section 45-5-202(3), MCA.
he District Court's sentencing of Smith on both of the offenses fell well within
these statutory parameters. We "generally review a criminal sentence only for
legality--
that is, to determine whether it is within the statutory parameters established by
the legislature; where a sentence is within
those parameters, we generally will affirm it." State v. Allen (1996), 278 Mont.
326, 334,
925 P.2d 470, 475 (citations omitted).

¶36 There are exceptions to the general rule, of course, and punishing a person for
exercising a constitutional right is one of them; such a sentence violates due
process. Allen,
925 P.2d at 475. Here, however, Smith's arguments do not establish a due process
violation
of any type recognized by this Court and he cites to no authority from other
jurisdictions
which support his allegation that the sentence imposed under the circumstances of


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (8 of 9)4/25/2007 4:32:42 PM
 97-280


this case
would constitute a due process violation.

¶37 The District Court's sentence falls well within the applicable statutory
sentencing
parameters and we hold that the District Court did not punish Smith for exercising
his
constitutional right to a trial.

¶38       Affirmed.

                                                                       /S/        KARLA M. GRAY

We concur:

/S/       WILLIAM E. HUNT, SR.
/S/       JAMES C. NELSON
/S/       JIM REGNIER

Justice W. William Leaphart, specially concurring.

¶39 I concur in issues two and three. I specially concur on issue one. It is
apparent from
the record that counsel for Smith made it sufficiently clear that expert
Sachsenmaier's
presence in the courtroom was essential to the presentation of Smith's case, in
particular the
cross-examination of the victim. Thus, under Rule 615(3), M.R.Evid., Smith's expert
should
not have been excluded. However, this error was rendered harmless when Smith waived
any
cross-examination of the victim without making any record as to why he was waiving
cross-examination or what he would have anticipated by way of substantive cross-
examination had
the expert been allowed to remain in the courtroom. Accordingly, I concur in the
result
reached by the Court.

                                                             /S/       W. WILLIAM LEAPHART




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-280%20Opinion.htm (9 of 9)4/25/2007 4:32:42 PM
