State v. HendersonState v. Henderson
delivered the Opinion of the Court.
Bill Henderson was convicted of accountability for incest and sexual intercourse' without consent in the Fourth Judicial District Court, Missoula County. He correctly asserts error in the District Court’s refusal to grant a directed verdict on the accountability for incest charge and its admission of expert testimony. We reverse and remand.
Bill Henderson (Henderson) was the stepfather of A.C., D.C., and B.C., the natural children of his wife, Stacey Henderson. The children lived with the couple until moving to Alaska to live with their maternal grandparents in December of 1984.
In June of 1985, the children’s grandmother discussed the topic of sexual abuse with A.C. and asked if she had ever been sexually abused. A.C. responded that she had been abused by Henderson. The next day, the grandmother took A.C. to Anne Drake, a family therapist. A.C. repeated her sexual abuse allegations and Drake contacted the Alaska Division of Family and Youth Services, which initiated a criminal investigation. During the investigation, the children recounted acts of simulated sexual intercourse
The State of Montana (State) charged Henderson with accountability for incest and sexual intercourse without consent; he was convicted of these offenses on June 10, 1988. Henderson failed to appear for sentencing and a bench warrant was issued. Henderson was apprehended four and one-half years later on December 31,1992.
In a written judgment dated March 19, 1993, the District Court sentenced Henderson to consecutive terms of incarceration totaling sixty years and recommended that Henderson not be eligible for parole. The parole board notified the District Court that the language in the judgment did not prevent Henderson from being paroled and, on April 9, 1993, the District Court entered an amended judgment precluding parole or participation in a supervised release program. Additional facts are included in our discussion of the issues.
Did the District Court abuse its discretion by denying Henderson’s motion for a directed verdict of acquittal on the accountability for incest charge?
The State charged that Henderson “knowingly before and during the commission of the offense of incest with the purpose to promote such commission solicited [B.C.] and [D.C.] to have sexual contact with their sister [A.C.].” (Emphasis added.) This charge stemmed from the children’s accounts of incidents where Henderson made D.C. and B.C. remove their clothes, lie on top of the naked A.C., and “move up and down.” While the children performed these simulated sex acts, Henderson masturbated nearby. At the close of the State’s case, Henderson moved for a directed verdict of acquittal on the accountability charge. The District Court denied the motion and the jury found Henderson guilty of the offense.
The grant or refusal of a directed verdict is within the trial court’s discretion.
State v. Downing
(1989),
Henderson argues that the District Court erred in denying his motion because the physical contact between the children did not constitute incest and, as a result, he cannot be convicted of accountability for that offense. We agree.
A person is legally accountable for the conduct of another when:
either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.
The State’s evidence did not establish that the children engaged in the intimate touching for this purpose. Indeed, the State’s witnesses
The State argues that the evidence established accountability for incest pursuant to
Absent evidence that the offense of incest was committed, there was no evidence upon which the jury could base a verdict of guilty on the accountability for incest charge. We hold, therefore, that the District Court abused its discretion in denying Henderson’s motion for a directed verdict of acquittal on that charge.
Did the District Court abuse its discretion in admitting the testimony of Anne Drake?
Anne Drake began counseling the children to address emotional problems associated with their move to Alaska. Her practice consisted primarily of family and marital counseling. She began counseling the children regarding the alleged sexual abuse, however, following A.C.’s disclosure to her grandmother in June of 1985.
During trial, the State offered Drake as an expert witness to testify to the validity of the children’s allegations of sexual abuse and A.C.’s statements identifying Henderson as the perpetrator. Over Henderson’s objection, the District Court accepted Drake as an expert witness and admitted her testimony.
The admissibility of evidence rests within the discretion of the trial court and is reviewed only for a manifest abuse of that discretion.
State v. Van Pelt
(1991),
A. Drake’s testimony regarding the validity of the children’s statements.
The parties argue for and against the retroactive application of cases determining the necessary qualifications for an expert witness on child sexual abuse which were decided between the 1988 trial of this matter and Henderson’s sentencing in 1993. Henderson argues for application of
State v. Harris
(1991),
The parties’ arguments relate to whether Drake was qualified as an expert on child sexual abuse to offer an opinion on the credibility of the children’s statements. Our decision, however, addresses the issue raised by Henderson’s objection at trial. That objection, al though somewhat ambiguous, essentially was that Drake’s opinion on the validity of the children’s statements lacked an adequate foundation.
In response to questions regarding the statements she actually reviewed in forming her opinion, Drake indicated that she had not read any of the children’s statements or medical reports, viewed the videotaped depositions, or talked to any investigators assigned to the case. She testified that her determination that A.C.’s statements were consistent and, therefore, “valid” or credible, was based largely on the similarity of A.C.’s statements to Drake and her grandmother.
Henderson objected to Drake expressing an opinion on the validity of A.C.’s statements because, according to her own testimony, the opinion was not based on the generally accepted criteria for validating such statements. The District Court overruled the objection and allowed Drake to testify that she believed “that what the children told [her] did indeed happen to them,” and “[she] felt like they were quite honest and candid with [her].”
Rule 703, M.R.Evid., which was adopted verbatim from the federal rule, addresses the foundation necessary for expert opinion; it permits an expert to use sources and kinds of information which other experts in that particular field reasonably rely on to form an opinion on a particular subject. “In determining whether an expert’s reliance on information is reasonable, the courts evaluate the opinion and its foundation on a case-by-case basis.” 3 Weinstein’s Evidence ¶ 703[03], 703-24 (1993). In instances where the expert lacks an adequate basis, the trial court must reject the opinion testimony.
See Cella v. U.S.
(7th Cir. 1993),
According to Drake, child sexual abuse experts form opinions regarding the validity of a child’s statements by reviewing and determining the consistency of the child’s various reports. Based on Drake’s own testimony that she did not determine the consistency of the children’s numerous statements and formed her opinion based on limited statements made by A.C., we conclude that Drake’s opinion on the validity of the children’s statements lacked an adequate foundation. We hold, therefore, that the District Court abused its discretion by admitting that opinion testimony.
B. Drake’s testimony repeating A.C.’s statements identifying Henderson as the perpetrator.
The State argues that Henderson failed to object to Drake’s testimony repeating A.C.’s out-of-court statements identifying Henderson as the perpetrator and, as a result, the issue is not properly before us. We disagree.
After hearing the parties’ arguments, the District Court determined that Drake’s testimony was admissible pursuant to the hearsay exceptions contained in subsections (4) and (24) of Rule 803, M.R.Evid. Henderson subsequently preserved his objection that the testimony was inadmissible pursuant to Rule 803(24), M.R.Evid., on the record prior to Drake’s direct examination. This procedure meets the requirement of Rule 103(a)(1), M.R.Evid., that a specific objection appear of record. Counsel are not required to restate an objection once it has been made and preserved. We conclude that this issue is properly before us.
Henderson urges the application of our 1991 Harris decision to resolve the issue of whether Drake’s testimony repeating A.C.’s statements identifying Henderson as the perpetrator was properly admitted. He contends that, under Harris, this testimony is inadmissible pursuant to the Rule 803(24), M.R.Evid., exception because A.C.’s own testimony at trial was the most probative evidence on the subject. The State does not address this issue separately but merely restates its opposition to applying any decisions retroactively to the time of the 1988 trial in this case.
In
J.C.E.,
the district court excluded as hearsay a counselor’s testimony regarding a child incest victim’s out-of-court statements identifying the defendant as the perpetrator. On appeal, the State argued that the counselor’s testimony was admissible pursuant to Rule 803(4), M.R.Evid., the medical diagnosis and treatment exception to the hearsay rule.
J.
C.E.,
The District Court in this case faced a situation similar to that presented by J.C.E. in that the State sought to admit A.C.’s hearsay statements identifying Henderson as the perpetrator through Drake’s testimony. Here, the District Court admitted the testimony pursuant to Rule 803(24), M.R.Evid., the catch-all exception to the hearsay rule which allows admission of statements having circumstantial guarantees of trustworthiness comparable to the other exceptions listed in Rule 803. It reasoned that a child’s statements to a family counselor possessed a circumstantial guarantee of trustworthiness comparable to statements made to a medical doctor which are admissible pursuant to Rule 803(4), M.R.Evid. Having rejected such testimony in J.C.E., under the more direct Rule 803(4), M.R.Evid., exception for lack of sufficient guarantees of trustworthiness, we cannot conclude that the testimony at issue here possessed sufficient guarantees of trustworthiness to warrant admission under the “other exceptions” provided in Rule 803(24), M.R.Evid. We hold, therefore, that the District Court abused its discretion by admitting Drake’s testimony repeating A.C.’s hearsay statements identifying Henderson as the perpetrator.
Henderson raises two additional issues: whether the District Court had authority to amend the written judgment and whether the twenty-year sentence for accountability for incest was lawful. Our resolution of the above issues renders it unnecessary to address the additional issues.
Reversed and remanded for entry of a directed verdict of acquittal on the charge of accountability for incest and for a new trial on the charge of sexual intercourse without consent.