STATE v SANDERSON

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TJo. 83-3558 I N THE SUPREME COURT O F THE STATE OF MONTANA 1984 STATE OF MONTANA, P l a i n t i f f and R e s p o n d e n t , -vsKENT ALLEN SATJDERSON I D e f e n d a n t and A p p e l l a n t . D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of C a r b o n , T h e H o n o r a b l e D i a n e G. B a r z , J u d g e p r e s i d i n g . APPEAL FROM: COUNSEL OF RECORD: For A p p e l l a n t : K i n n a r d & Woodward; B i l l i n g s , Montana V e r n Woodward argued, F o r Respondent : M a r k M u r p h y argued, Special D e p u t y C o u n t y A t t y . for C a r b o n C o u n t y & A s s t . A t t y . G e n e r a l , H e l e n a C l a y S m i t h argued, A s s t . A t t o r n e y G e n e r a l , H e l e n a , Montana ON REHEARING Submitted: Decided: Filed: N o v e m b e r 21, 1 9 8 4 J a n u a r y 4 , 198& 3kII 4 Clerk -- - Justice the Court. :I. J o h n Conway H a r r i s o n Appellant, judgment without Kent on a j u r y Carbon County, verdict The consent. Allen delivered Sanderson, of g u i l t y of Thirteenth the Opinion from appeals sexual a intercourse District Judicial of Court, s e n t e n c e d him t o t e n y e a r s on t h e o n e c o u n t . Ide a f f i r m . W e h a n d e d down t h e o r i g i n a l November 9, 1984. Opinion in t h i s c a u s e on S u b s e q u e n t l y a p e t i t i o n f o r r e h e a r i n g and r e s p o n s e t o t h a t p e t i t i o n were f i l e d w i t h t h i s C o u r t . careful consideration, should be revised. we have concluded 1984, 8, Opinion and s u b s t i t u t e t h e following Opinion. There a r e e s s e n t i a l l y t h r e e p a r t i e s case: the A s a r e s u l t w e now w i t h d r a w t h e o r i g i n a l O p i n i o n w h i c h was d e c i d e d November therefor that After the defendant, the victim and involved the in victim's this best friend. B e c a u s e t h e v i c t i m and h e r f r i e n d w e r e j u s t s i x t e e n y e a r s of age a t t h e t i m e of t h e i n c i d e n t we s h a l l them b y t h e i r i n i t i a l s : K.D. and D.J. respectively. b e g a n h e r m o r n i n g on March 2 9 , K.D. h e r mother t o work a n d h e r y o u n g e r refer to 1982, by d r i v i n g sister t o school. She t h e n met h e r b e s t f r i e n d , D . J . , a n d t h e two o f them d e c i d e d n o t t o a t t e n d c l a s s e s t h a t day. They w e r e b o t h j u n i o r s a t a BiLlings high school. A d e c i s i o n was made t o d r i v e t o Red Lodge w h e r e t h e y e x p e c t e d t o meet w i t h some f r i e n d s who h a d gone skiing for left Billings t h e day. Around and proceeded east a n d t h e n s o u t h t o w a r d Red Lodge. Laurel, t h e c a r b r o k e down appellant Sanderson stopped. and 10:0GI to a.m. Laurel t h e two g i r l s on t h e freeway About f i v e m i l e s s o u t h o f e v e n t u a l l y a van d r i v e n After examining the car by and trying unsuccessfully to start g i r l s a ride into Laurel. it, Sanderson offered the T h e r e , h e s a i d , h e would a t t e m p t t o l o c a t e a tow c h a i n s o t h e y c o u l d t o w t h e c a r i n t o t o w n . S a n d e r s o n had o r i g i n a l l y intended t o cash a check L a u r e l s o t h e t r i o ' s f i r s t s t o p was a t a b a n k . to Adeline's they drove C a f e where in From t h e r e S a n d e r s o n met a friend whom h e t h o u g h t m i g h t e i t h e r h a v e a c c e s s t o a t o w c h a i n o r know where one might be found. According to Sanderson's t e s t i m o n y i t was h e r e t h e g i r l s i n d i c a t e d t h e y w e r e s t u d e n t s a t E a s t e r n Montana C o l l e g e . The where that party stopped Sanderson bought at a the a Suds Iiut, pitcher local testified of beer. if Sanderson t o l d h e r and D . J . tavern, anyone asked K.D. them for i d e n t i f i c a t i o n because of t h e b e e r t h e y should s a y t h e y were college students but did them. I t was K . D . ' s s h e and U . J . o t h e r hand, not have any identification with c o n t e n t i o n a t t r i a l t h a t S a n d e r s o n knew were h i g h s c h o o l s t u d e n t s . Sanderson, on t h e r e i t e r a t e d h i s b e l i e f t h a t t h e y were e i g h t e e n o r n i n e t e e n y e a r s o l d and were c o l l e g e s t u d e n t s . Everyone agreed that while a t conversation turned t o drugs. K.D. lively between conversation occurred c o n c e r n i n g t h e s a l e of in t h a t conversation. conversed drugs. with D.J., Sanderson Sanderson's h i s testimony, marijuana. K.D. the Suds Hut the testified that a fairly K.D. however, about the and D.J. denied Sanderson taking part s a i d b o t h s h e and K.D. possibility s t o r y is a b i t d i f f e r e n t . t o l d him t h e y were n o t of selling According t o r e a l l y going t o Red Lodge t o s k i b u t were g o i n g t o p i c k up some m e s c a l i n e . S a n d e r s o n s a i d h e t o l d t h e g i r l s h e c o u l d g e t some m a r i j u a n a f o r them t o s e l l and t h e y t o l d him t h e y c o u l d s e l l a p o u n d . Prom t h e S u d s Nut t h e t r i o w e n t a c r o s s t h e s t r e e t t o a convenience store They d r o v e from where there according to cigarettes, to or joints, at the Sanderson t h e Pa11n B e a c h Sanderson, supper bought they for and Supper Club smoked on t h e way. c l u b was beer two wine. and, marijuana The p u r p o s e o f t h e s t o p Sanderson t o make a telephone c a l l t o s e t up a d e a l t o o b t a i n a q u a n t i t y o f m a r i j u a n a f o r The c o n t a c t , who worked a t a r a n c h , s a i d the g i r l s to s e l l . h e h a d a s m a l l s a m p l e on h a n d . Sanderson t e s t i f i e d t h a t a f t e r o b t a i n i n g a chain a t a service station, given a one-half they drove to ounce bag o f the ranch marijuana where to they sample. were Then, Sanderson s a i d , they drove t o t h e g i r l ' s parked c a r . Everyone a g r e e d t h a t once t h e y reached t h e parked c a r they could not find a place able start the car, before it quit to distance t o hook t h e c h a i n . however, drove it a They d e c i d e d again. and They were to leave short it parked alongside t h e road. According t o S a n d e r s o n ' s t e s t i m o n y , a f t e r leaving the s t a l l e d c a r t h e s e c o n d t i m e t h e y r e t u r n e d t o t h e Palm B e a c h supper club. they S i n c e i t was a p p r o x i m a t e l y 3:00 p.m., normally would return home from school, t h e time the girls t h o u g h t t h e y s h o u l d c a l l home. S a n d e r s o n l o a n e d them money to call. t h e y drove t o t h e ranch and obtained Now, the Sanderson s a i d , pound of Sanderson a l s o s t a t e d marijuana that for the girls to sell. i t s e e m e d t o him t h e g i r l s w e r e more i n t e r e s t e d i n g e t t i n g t h e p o u n d o f m a r i j u a n a t h a n t h e y w e r e i n g e t t i n g t h e i r c a r home. Once t h e y h a d t h e m a r i j u a n a i n h a n d t h e t h r e e p a r t i e s began t h e t r i p back t o L a u r e l . Sanderson t e s t i f i e d t h a t on t h e way t o Laurel. h e p u l l e d o f f t h e r o a d a t a b r i c k h o u s e , later identified as the t e s t i f i e d he stopped Donald to talk Blackburn to residence. t h e g i r l s about when He and where h e c o u l d p i c k up t h e money t h e g i r l s would u l . t i m a t e l y r e a l i z e from t h e s a l e of t h e m a r i j u a n a . emphasized the fact Sanderson s a i d h e t o t h e g i r l s t h a t h e r e a l l y wanted t o t r u s t them t o g e t t h e money f o r him s i n c e h e was g i v i n g t h e m a r i j u a n a t o them on c r e d i t . if He a l s o a d m i t t e d t e l l i n g them h e d i d n o t g e t t h e money b a c k e l s e would, threat. f r o m them then somebody a statement t h e g i r l s s a i d t h e y p e r c e i v e d a s a H e f u r t h e r a d m i t t e d a t t r i a l t h a t h e may h a v e b e e n suggestive at this point in i n s l s t s a t t h i s p o i n t K.D. the conversation. a s k e d him i f t r u s t h e r f o r t h e pound o f m a r i j u a n a . Sanderson s e x would h e l p him He t e s t i f i e d s h e t h e n t o o k h e r p a n t s o f f and had i n t e r c o u r s e w i t h him i n t h e b a c k of t h e v a n , b u t o n l y o n c e . t h e van during t h e a c t . he took the g i r l s He s a i d D . J . Finally, t o Laurel and was i n t h e f r o n t o f Sanderson t e s t i f i e d left that them a t t h e S a f e w a y store. Tracing t h e g i r l s ' second attempt to start d i f f e r e n t account of after s h e and D.J. t e s t i m o n y from t h e p o i n t where t h e the car was events unfolds. made, K.D. a somewhat testified that abandoned t h e c a r f o r t h e second t i m e , t h e y r e t u r n e d t o t h e Palm Beach s u p p e r c l u b w i t h S a n d e r s o n . Both girls Sanderson. called their mothers with money borrowed from S a n d e r s o n t o l d them h i s f a t h e r had a f i f t h - w h e e l t r a i l e r t h a t h e m i g h t be a b l e t o b o r r o w t o u s e t o h a u l t h e car i n t o town. spot along the The t r i o d r o v e from t h e s u p p e r c l u b t o a river where they a l l smoked b e f o r e p r o c e e d i n g t o t h e E l Rancho I n n . K.D. some m a r i j u a n a saw a c l o c k a t t h a t l o c a t i o n a n d n o t i c e d i t was 5 3 3 0 p.m. Prom t h r e e d r o v e t o t h e r a n c h a n d were u n s u c c e s s f u l the trailer. R e t u r n i n g from t h e r a n c h , there the in obtaining s a i d Sanderson K.D. p a r k e d t h e van i n a d r i v e w a y n e a r a b r i c k house and j u s t s a t He then got into there for several minutes without talking. t h e back of t h e van w i t h t h e g i r l s and t o l d t h e g i r l s t h e y were g o i n g t o s e l l t h e m a r i j u a n a f o r him. Sanderson van. grabbed K.D. and D.J. tried pushed t o g e t out of her They r e f u s e d , a n d to the t h e van but back o f the was p r e v e n t e d f r o m d o i n g s o when S a n d e r s o n g r a b b e d h e r arm a n d t w i s t e d i t behind h e r back. b u t D.J. said she continued t o t r y t o escape K.D. t o l d h e r t o s t o p f o r f e a r t h a t S a n d e r s o n would h u r t them. D.J. doing this also testified see to if he on top of both of them k i s s i n g a n d f o n d l i n g D.J., was m e n s t r u a t i n g . K.. off I trust saying them. he was K.D. said t h e van and simultaneously. He began b u t s t o p p e d when s h e t o l d him s h e Sanderson A c c o r d i n g t o K.D. then turned h i s attention to account, Sanderson took her pants s and h a d s e x u a l i n t e r c o u r s e w i t h h e r a n d t h e n g o t o f f o f her, began kissing i n t e r c o u r s e w i t h K.D. act could kept them t o t h e f l o o r of Sanderson pushed b o t h o f laid Sanderson of sexual D.J. again and then f o r a s e c o n d time. intercourse, Sanderson had sexual After t h e second drove the girls to B i l l i n g s a n d d r o p p e d them o f f a t t h e H o l i d a y I n n . In their statements to authorities, f i r s t gave c o n f l i c t i n g s t o r i e s . a s r e l a t e d above. D.J., K.D.'s t h e two g i r l s a t s t o r y was b a s i c a l l y on t h e o t h e r h a n d , initially told l a w e n f o r c e m e n t o f f i c e r s t h a t a t h i r d g i r l had accompanied them t o L a u r e l . She l a t e r a d m i t t e d t h a t was a l i e d e s i g n e d for of the benefit her parents. She had said the reason t h e y went t o L a u r e l was t o g i v e t h e g i r l a r i d e home. Appellant Sanderson p r e s e n t s the following Court erred i s s u e s on appeal : (1) Whether the District by denying a p p e l l a n t ' s motion t o d i s m i s s f o r l a c k of a speedy t r i a l . (2) Whether the District Court by erred. denying a p p e l l a n t ' s motion t o p r o v i d e f o r a t t e n d a n c e o f a w i t n e s s . (3) Whether the District Court committed reversible e r r o r by f a i l i n g t o g i v e a p p e l l a n t ' s o f f e r e d i n s t r u c t i o n No. 8 concerning p r i o r inconsistent statements. (4) presented Whether the verdicts rendered and the evidence are so inconsistent a s t o invalidate the verdict of g u i l t y on c o u n t o n e o f t h e i n f o r m a t i o n . ( 5 ) Whether t h e c l o s i n g a r g u m e n t o f t h e S t a t e v i o l a t e d appellant's right to a f a i r trial. (6) Whether the District Court committed reversible e r r o r by f a i l i n g t o g i v e a p p e l l a n t ' s o f f e r e d i n s t u r c t i o n No. 11 setting Eorth the material allegations of the information. ( 7 ) Whether the District Court committed reversible e r r o r by d e n y i n g a p p e l l a n t ' s m o t i o n t o s u p p r e s s e v i d e n c e . I Appellant from argues the of time that arrest because on of March commencement o f t r i a l on A p r i l 2 5 , 38, A p p e l l a n t was a r r e s t e d on March 3fl, 5, originally 1982 and set for then June released 21, 1982 391 d a y d e l a y 1982, until the 1 9 8 3 , h e was d e n i e d h i s c o n s t i t u t i o n a l . r i g h t t o a speedy t r i a l . April the W disagree. e 1 9 8 2 , a r r a i g n e d on on bail. but on June Trial 8, was 1982, appellant, through his original counsel, requested and received a continuance of the trial date until August 16, 1982. was On July 13, 1982, appellant's bond was revoked and he reincarcerated remained in until being on August 2, 1982. the Carbon County Jail were h e released on his own recognizance On August 24, 1982, appellant asked for and received a second continuance of at least sixty days. Plea negotiations further delayed matters and on December 22, the trial judge received notice from Sanderson stating he did not want to accept the negotiated plea arrangement. In that same intention to letter withdraw Sanderson's as his attorney attorney. stated Appointment his as deputy county attorney for Carbon county was cited as the reason for the withdrawal. On January 12, 1983, Sanderson's new attorney was appointed. 1983, the April District Court 25, 1983. By order mailed January 31, set appellant's On March trial date 17, 1983, appellant's for counsel filed a motion to dismiss on the basis appellant had been denied his constitutional right to a District Court denied the motion speedy trial. on April The 19, 1983, and trial commenced on April 25, 1983. The right to a speedy trial is guaranteed by both the Sixth Amzndment to the United Article 11, States Constitution and by section 24 of the 1972 Montana Constitution. Yoreover, the federal provision has been imposed upon the several states by the Due Process Clause of the Fourteenth Amendment North L.Ed.2d to the United Carolina (1967), States Constitution. 386 U.S. 213, 87 Klopfer v. S.Ct. 988, 18 1. Having established appellant's right to a speedy t r i a l , w e now c o n s i d e r w h e t h e r t h a t r i g h t h a s b e e n d e n i e d . Both he used a p p e l l a n t and respondent agree t h a t i n determining whether t h e r i g h t the test to t o a speedy t r i a l h a s b e e n d e n i e d was e n u n c i a t e d more t h a n a d e c a d e a g o b y t h e U n i t e d S t a t e s Supreme C o u r t 1J.S. 514, 9 2 S.Ct. 2182, i n Barker v. 33 L.Ed.2d Wingo ( 1 9 7 2 ) , 487 In that decision lnl. the Court stated: "The a p p r o a c h w e a c c e p t i s a b a l a n c i n g test i n which t h e c o n d u c t o f b o t h t h e p r o s e c u t i o n and d e f e n d a n t a r e weighed. "A b a l a n c i n g t e s t n e c e s s a r i l y compels c o u r t s t o a p p r o a c h s p e e d y t r i a l c a s e s on an ad hoc b a s i s , W e c a n do l i t t l e more t h a n i d e n t i f y some o f t h e f a c t o r s w h i c h courts should assess in determining whether a p a r t i c u l a r d e f e n d a n t h a s been deprived of h i s r i g h t . Though some m i g h t we e x p r e s s them i n d i f f e r e n t ways, i d e n t i f y four such f a c t o r s : Length o f delay, t h e reason f o r t h e delay, t h e d e f e n d a n t ' s a s s e r t i o n o f h i s r i g h t , and prejudice t o t h e defendant." B a r k e r 4fl7 1J.S. a t 530. some e x p l a n a t i o n o f After the four factors the Court continues: "We r e g a r d n o n e o f t h e f o u r f a c t o r s i d e n t i f i e d above a s e i t h e r a n e c e s s a r y o r s u f f i c i e n t condition t o t h e findings of a deprivation of t h e r i g h t of speedy t r i a l . R a t h e r , t h e y a r e r e l a t e d f a c t o r s and must be c o n s i d e r e d t o g e t h e r w i t h s u c h o t h e r c i r c u m s t a n c e s a s may b e r e l e v a n t . In sum, t h e s e f a c t o r s h a v e n o t a l i s m a n i c q u a l i t i e s ; c o u r t s must s t i l l engage i n a difficult and sensitive balancing process." B a r k e r , 487 U.S. a t 5 3 3 . I n t h e p r e s e n t c a s e i t is e s s e n t i a l t h a t we c a r e f u l l y e n g a g e in the difficult described in relied Barker on Barker. 2 0 9 , 516 P.2d 372, factors the and and in sensitive W e balancing note S t a t e v. that process this Sanderson which is Court initially (1973), 1 6 3 Mont. i n w h i c h we a d o p t e d t h e u s a g e o f t h e f o u r balancing test which is necessary in reaching a final conclusion. We note that the delay here was 390 days which is sufficient to trigger a speedy trial inquiry. (Mont. 19831, 661 P.2d 26, 40 St.Rep. 364. the reasons given State v. Kel-ly We conclude that for the delay were not terminate our inquiry at that point. sufficient to In addition the State agrees with the defendant's contention that he asserted his right within the appropriate time. This leaves as the only remaining Barker factor, the question of prejudice. The United States Supreme Court in United States v. Ewell (1966), 383 U.S. 116, @S.Ct. L.Ed.2d 627, set 773, 15 forth three interests which the Sixth Amendment was designed to protect in cases such as these. The first was question Here incarceration. the of undue the defendant was and oppressive incarcerated for twenty-seven days which the record does not disclose to be oppressive. The next factor is the presence of significant anxiety and concern accompanying public accusation. While defendant did testify as to his anxiety, there is substantial evidence in the record to allow the District Court to conclude that in fact his anxiety was very limited. we do not turn the case on this point. However, We do note that there was nothing in the record to justify the conclusion that the defense of the defendant was impaired. While defendant argued that there were diminished memories on the part of his witnesses and that a key witness moved out of the state, the prosecution showed that the key witness left the state in August, 1982, and his absence was not caused by any delay in trial. This was buttressed by the failure on the part of the defendant to attempt to depose or otherwise preserve testimony of witnesses. As a part of the balancing process required under Barker, we have reviewed the record with regard to the trial delay, and have concluded that there is substantial evidence to show that the defendant may not have wanted a speedy trial and that the defendant in fact was responsible for the delay in substantial part. As a result we have concluded that v. defendant is in a position similar to Mr. Barker in Barker Wingo in that the record demonstrates that the defendant did not really desire a speedy trial. While this is a close and difficult question, applying the sensitive balancing process required under Barker, we conclude that the defendant in this case was not deprived of his constitutional right to a speedy trial. Appellant's second issue on appeal is whether the District Court erred by denying his motion to provide for attendance of a witness. On 21, four days before trial, counsel for appellant filed a motion to provide for the attendance of a defense witness, Stevenson, who was at that time residing in Massachusetts. The State resisted the motion on the grounds that another defense witness would testify to the same facts. coupled with Because of that redundancy, cost considerations, the motion was denied. The State contends the motion was properly denied for two reasons. First, appellant failed to compl-y with the procedure for subpoenaing out-of-state witnesses as set forth in section 46-15-113, MCA. Second, the out-of-state witness would have duplicated testimony already at hand and as such would not have qualified as a material witness under the statute. The appellant insists he was denied due process by the District Court's failure to provide for the attendance of the witness. According to appellant access to the witness was denied solely on the basis of county financial consideration, and cites a long line of United States Supreme Court cases to buttress his due process claim. A c c o r d i n g t o s e c t i o n 46-15-113, the MCA, decision w h e t h e r t o compel t h e a t t e n d a n c e o f an o u t - o f - s t a t e witness r e s t s s o l e l y w i t h i n t h e d i s c r e t i o n of t h e t r i a l c o u r t judge. T h i s C o u r t h a s a d d r e s s e d s e c t i o n 46-15-113, MCA, o n l y once and t h e n i n a manner u n r e l a t e d t o t h e i s s u e b e f o r e u s t o d a y . The Court (1976), of Appeals 38 N.Y.2d of 618, York, New 345 N.E.2d People 326, v. NcCartney 381 N.Y.S.2d 855, found i t s e l f f a c e t o f a c e w i t h a s t a t u t e a l m o s t i d e n t i c a l t o ours: request "A that t h e T r i a l Judge issue a certificate p u r s u a n t t o [ t h e s t a t u t e ] seeking t h e compulsory a t t e n d a n c e of a w i t n e s s i n a n o t h e r s t a t e i s a d d r e s s e d t o t h e d i s c r e t i o n of t h e t r i a l judge." ... " That Court f u r t h e r held t h a t i n t h e a b s e n c e o f a n a b u s e o f d i s c r e t i o n w e may n o t o v e r t u r n [the trial judge's] McCartney, (1968), 345 N.E.2d 74 certificate determination a t 33C). Wash.2d 102, of nonmateriality." See a l s o S t a t e v. 443 P.2d 536, (Issuance t o compel a t t e n d a n c e o f o u t - o f - s t a t e is n o t mandatory b u t l a r g e l y d i s c r e t i o n a r y ) ; Edwards ( 1 9 7 0 ) , 471 P.2d 843, c e r t i f i c a t e s for out-of-state 3 Or.App. Etheridge 179, of witnesses and S t a t e v. ( I s s u a n c e of w i t n e s s e s w i t h i n d i s c r e t i o n of t r i a l court). The o n l y p r o c e d u r e t o s u b p o e n a a n o u t - o f - s t a t e is set forth instant case. set forth would be, in in section 46-15-113, The a p p e l l a n t the statute, properly MC.4, failed or witness applied to t o make t h e p r o c e d u r e otherwise Stevenson had, subpoenaed. the Appellant's motion or was f a u l t y , and p r o p e r l y d e n i e d . In testimony addition, of Mrs. it is clear Watson from (the the record ex-wife the the absent w i t n e s s ) , g i v e n by d e p o s i t i o n and r e a d t o t h e j u r y , covered t h e e v e n t s t h a t occurred i n A d e l i n e l s Cafe. of that Therefore, w e f i n d no a b u s e of d i s c r e t i o n i n n o t b r i n g i n g S t e v e n s o n back from M a s s a c h u s e t t s . If court appellant's judge had contention denied was h i s motion true that s o l e l y on the trial the b a s i s of c o u n t y f i n a n c i a l s t a n d i n g , t h e n a n i n j u s t i c e would h a v e b e e n done. I n S t a t e v. t h e Court 36.3, Z a r r i s ( 1 9 8 0 ) , 47 Or. of Appeals held that Rpp. 6 6 5 , 615 P.2d t h e d e f e n d a n t made a s u f f i c i e n t showing t h a t h i s p r o p o s e d o u t - o f - s t a t e witnesses were erred material refusing and therefore the reason materiality abuse of will of t o conclude in The H e r e t h e t r i a l j u d g e had appellant's proposed w i t n e s s was W e hold t h a t a t r i a l c o u r t ' s f i n d i n g a s t o t h e nonmaterial. statute court t o provide funds t o secure t h e i r attendance. c a s e a t b a r i s d i s s i m i l a r however. ample trial a not witness be when disturbed discretion. applying absent Accordingly a we this clear reject particular showing of appellant's a r g u m e n t on t h i s i s s u e . TI1 Next appellant contends t h e D i s t r i c t Court committed error to reversible No. by failing give offered instruction 8 concerning p r i o r inconsistent statements. There is a dearth instructions on p r i o r gontana elsewhere but of case inconsistent as well. h e a v i l y r e l i e d upon by d e f e n d a n t , 1 6 3 Mont. 106, 515 P.2d 695. law regarding statements The lone jury not only Montana in case, i s S t a t e v. T a y l o r ( 1 9 7 3 ) , The d e f e n d a n t i n T a y l o r was c h a r g e d w i t h s e c o n d d e g r e e h o m i c i d e a r i s i n g from t h e d e a t h of a t w o - y e a r - o l d child. The c h i l d ' s m o t h e r g a v e t e s t i m o n y a t t r i a l which was i n c o n s i s t e n t w i t h s t a t e m e n t s s h e had made prior to trial. The defendant appealed his conviction contending the trial court erred by not including in its jury instructions his request that prior statements are one of the factors which the jury should consider as possibly repelling witness speaks the inconsistent truth. the presumption This Court agreed that a with the defendant in that case and relied on section 93-1091-12, R.C.M. 1947, which specifically provided: "A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony. . " . We concluded: "Clearly, such an instruction would have been proper and in a case, such as this, when the State's principal witness had admittedly made a number of prior inconsistent statements, it would seem particularly appropriate. The giving of the instruction with the defendant's requested inclusion regarding prior inconsistent statements would better accord with the accepted principle of fully and clearly instructing the jury as to the specifics of the law applicable to the case." Taylor, 515 P.2d at 704. We must distinguish Taylor from the case at hand for several reasons. First Taylor, in - the inconsistent testimony went directly to the heart of the issue at bar: whether the defendant had, in fact, caused the death of the victim. In the instant case, the inconsistencies in the testimony of D.J. contain no probative value. respondent's conclusion that " .. We agree with .not only was [sic] none of her inconsistencies material to whether the defendant's intercourse with the victim was consensual, but they were also corrected in a later pretrial statement." Second, and most persuasively, the trial court instructed the jury more than sufficiently on the matter in its i n s t r u c t i o n No. was read t o the jury: the truth. In that 1. "Every w i t n e s s This presumption, t h e manner i n s t r u c t i o n the following i n which h e i s presumed however, testified, may b e t o speak r e p e l l e d by by t h e c h a r a c t e r of his t e s t i m o n y , o r by e v i d e n c e a f f e c t i n g h i s r e p u t a t i o n f o r t r u t h honesty, integrity, evidence. (Emphasis i n s t r u c t i o n No. or h i s m o t i v e s o r by c o n t r a d i c t o r y is 8 would ours.) have Appellant's been requested identical the i n s t r u c t i o n with the following addition: to above "Furthermore, t h i s p r e s u m p t i o n may b e r e b u t t e d by e v i d e n c e t h a t t h e w i t n e s s h a s made, at other times, p r e s e n t testimony." statements inconsistent with his W e f i n d t h a t no e r r o r was c o m m i t t e d b y t h e c o u r t b e l o w , r e v e r s i b l e o r o t h e r w i s e , by r e f u s i n g t o add t h i s r e d u n d a n t s e n t e n c e t o a n a l r e a d y c o m p l e t e and c o m p e t e n t instruction. IV A p p e l l a n t ' s f o u r t h i s s u e on a p p e a l d e a l s w i t h w h e t h e r there was they based urges us sufficient their t o find evidence verdict. before More the jury upon specifically, which appellant t h e v e r d i c t was s o i n c o n s i s t e n t w i t h t h e evidence a s t o invalidate t h e j u r y ' s findings. Appellant intercourse was without charged consent. with The two counts victim of sexual testified that a p p e l l a n t had f o r c e d h e r t o h a v e two s e p a r a t e a c t s o f s e x u a l i n t e r c o u r s e w i t h him. The a p p e l l a n t i n s i s t s t h e r e was o n l y o n e a c t and t h a t a c t was c o n s e n s u a l . This Court has p r e v i o u s l y faced t h i s i s s u e i n r e c e n t cases, S t a t e v. Thompson ( 1 9 7 8 ) , 1 7 6 Mont. 150, 576 P.2d 1 1 0 5 ; S t a t e v. Doe ( 1 9 7 6 ) , 1 4 3 Mont. 1 4 1 , 1 4 6 , 388 P.2d 372, 375. In Thompson, supra, we noted in following - supra Boe, that "where separate acts are charged in an information, and each act is a separate offense, an acquittal or conviction of one or more counts does not affect the other counts. . ." The jury, after deliberating for approximately nine hours, found appellant guilty on count one and on count two. not guilty Appellant apparently feels that either the jury believed his story or it believed the victim's but could not have believed a little of each. Appellant argues if the jury believed his story, the verdict should have been not guilty on both charges. If the jury believed the victim's story, the verdict should have been guilty on both counts. The decision we are therefore called upon to make is whether the jury was within its province to believe the victim's testimony to the point of convicting appellant of sexual intercourse without consent, while at the same time disbelieving the victim's testimony as to how many acts were perpetrated. A long line The question is well settled in Montana. of cases state emphatically that this Court, when assessing the sufficiency of the evidence upon which a jury has based its verdict, must view that favorable to the prosecution. when ". . . Court must conviction evidence 888. a light most Most recently this Court held assessing the sufficiency of the evidence, this give that it all it will of the probative support. (1973), 163 Mont. 220, 227, 516 P.2d Hammons in (Mont. 1983), 664 P.2d effect State v. 605, 610." toward Fitzpatrick State v. 922, 926, 40 St.Rep. 884, This Court will not substitute its judgment for that of the jury; firsthand the the witnesses Therefore j u r y which, 3 we in t h i s case, evidence presented, and weigh reject the observe credibility appellant's was a b l e t o v i e w the demeanor of each contention as of party. to the v a l i d i t y of t h e v e r d i c t . Appellant closing contends argument by that the the State following were so statements inflamatory on and p r e j u d i c i a l a s t o d e n y him h i s r i g h t t o a f a i r t r i a l : "In order t o find the defendant not g u i l t y , you h a v e t o t e l l K.D., first, t h a t s h e was a d r u g p u s h e r ; s e c o n d t h a t s h e i s a s l u t ; and t h i r d , t h a t s h e i s a liar. You h a v e g o t t o t e l l h e r t h a t y o u b e l i e v e t h e d e f e n d a n t when h e s a y s s h e l a i d i n back o f t h e c a r and t o o k h e r p a n t s o f f and i n d i c a t e d f o r him t o come hack. And, i f you c a n b e l i e v e t h a t , l a d i e s and g e n t l e m e n , f r o m t h e t e s t i m o n y t h a t was p r e s e n t e d i n t h i s c a s e , you c a n a c q u i t him, and l e t him g o . " A t t h e t i m e of t r i a l , s e c t i o n 46-20-702, provided MCA, t h a t "Any e r r o r , d e f e c t , i r r e g u l a r i t y o r v a r i a n c e which d o e s n o t a f f e c t s u b s t a n t i a l r i g h t s s h a l l be d i s r e g a r d e d . " This h a s s u b s e q u e n t l y been m o d i f i e d . By h i s t e s t i m o n y and e v i d e n c e , c o n v i n c e t h e j u r y t h a t K.D. appellant attempted t o was i n t e r e s t e d i n s e l l i n g d r u g s and was t h e r e f o r e a d r u g p u s h e r , t h a t s h e had v o l u n t a r i l y offered herself any encouragement p a r t of t h e a p p e l l a n t , which c e r t a i n l y s u g g e s t s t h a t p a r t s of society our sexually without would a p p e l l a n t c o n t e n d e d many jury. class her times The t e s t i m o n y o f K . D . as a t h a t K.D. "slut" had on and lied to the last the contradicted these contentions on t h e p a r t o f t h e a p p e l l a n t . While it is not true that in order to find the appellant not guilty, the jury would have to tell K.D. that she was a drug pusher, slut and liar this is a matter of argument to the jury and not legal instruction by the court. We certainly do not condone any such misstatement on the part of the prosecution as to the standard to be applied for conviction or aquittal. However, we do recognize that a comment of this nature upon the evidence submitted by the appellant would have been prosecution is concerned. appropriate so far as the In weighing the effect of the argument, we have examined the record and concluded that the error on the part of the prosection in making this argument i d not affect the substantial rights on the part of the appellant and, therefore, may be disregarded. VI Appellant next contends the District Court committed reversible error by failing to give his offered instruction No. 11 setting forth the material allegations of the He relies on section 46-11-401(l)(c)(iv), MCAI information. which reads: "Form of charge. (1) A charge shall: charge the commission of an offense by: . .. ... (c) (iv) stating the time and place of the offense as definitely as can be done . . . " Because the information charging him stated the offense took place . . " .. . between Rockvale and Edgar . " appellant claims it was insufficient when held up to section 46-11-401(l)(c)(iv), MCA. The whether test of the sufficiency of an information is the defendant is apprised of the charges brought against him and whether he will be surprised. Rogue (1963), 142 Mont. 459, 384 P.2d 749. State v. The test of the sufficiency of an information is whether a person of common understanding would know what is intended to be changed. State v. Board (1959), 135 Mont. 139, 337 P.2d 924. It is clear from the record that appellant was adequately apprised of the charges brought against him, that a-ppellant was not surprised by the charges and that he possessed such common understanding as enabled him to against him were intended to be. underlying know what the charges Indeed, the public policy the technical requirements of the charging statute is to afford defendant due process of law; that is to fa.irly apprise them of what crime they are being charged with in order that they might fully defend against it. Here, appellant knew full well from the information what crime he had been charged with. His crime was not part of a common scheme involving many incidents over a long period of time. He had not committed so many similar crimes in the general vicinity that he was confused as to just which sexual intercourse without consent the prosecution was referring to. Accordingly we disagree with appellant's contention of error in this issue. VI I The District Court committed reversible error, appellant contends, by denying his motion to suppress evidence. Appellant moved to suppress evidence seized pursuant to the issuance of a search warrant he claims was defective on its face. issue since the However, we need not decide this only evidentiary significance of the property seized was to establish the physical presence of the victim in the van. Because appellant admitted her presence and the a c t of sexual intercourse, the property s e i z e d had no e v i d e n t i a l l y p r e j u d i c i a l i m p a c t and d i d n o t contribute i n a n y way to the conviction. Therefore the q u e s t i o n is moot. The judgment of the District Court convicting a p p e l l a n t of o n e c o u n t o f s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t is a f f i r m e d . W e concur: ---- Chief J u s t i c e -- ---- Hongfdable J o h n enson, on, D i t ict Judge, s i t t i n g i n ?I ? o f Mr. J u s t i c e L . C . Gulbrandson. %ojl Lqr. C h i e f J u s t i c e Prank I . H a s w e l l : I concur i n the result.

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