State v. Given

State v. Given, 2015 MT 273 (Sept. 15, 2015) (McGrath, C.J.) (7-0, aff’d)

Issue: (1) Whether the district court abused its discretion in permitting AU to testify about prior sexual abuse by Given; (2) whether the district court abused its discretion when it limited the defense examination of witnesses regarding specific instances of conduct; and (3) whether the district court abused its discretion in admitting testimony from the state’s expert, Wendy Dutton.



Facts: In April 2011, Detective Kevin Cunningham responded to a report of sexual abuse of KF, a 10-year-old boy. Cunningham interviewed KF, who disclosed three incidents in which his neighbor, Given, had touched him inappropriately over the past year. Cunningham also interviewed KF’s mother and her cousin CH, who was Given’s boyfriends and lived with Given next door to KF’s family.

Given denied KF’s accusations, although he admitted mistakenly walking in on KF while he was masturbating and watching him, kissing KF on the cheeks, showing him pornographic videos and giving KF a cell phone without his parents’ knowledge. Givens was arrested and charged with felony sexual assault.

During discovery, the state gave notice of its intent to call AU, Given’s sister, at trial. In 1995, Given admitted and was convicted of sexual assault against AU from the time she was 6 until she was 11. Given moved to exclude AU’s testimony under M.R. Evid. 404(b), and the district court denied the motion. The state moved to exclude evidence of KF’s abuse by his stepfather, reference to Given’s boyfriend as a registered sex offender, and KF’s counseling records. The court granted the first two motions, and ordered the counseling records excluded unless it was appropriate to bring them in under Rule 608 or 801.

The case went to jury trial, and KF testified. Prior to allowing AU to testify, the court instructed the jury that evidence of Given’s prior acts was for the limited purpose of showing his intent or absence of mistake, and should not be used to convict him of these charges. AU testified that she had spent time with Given and KF, and that she had noticed Given’s behavior toward KF was similar to his behavior toward her when she was young. Over Given’s objection, AU testified to the abuse.

Wendy Dutton, a forensic interviewer in Arizona, testified for the state. She has interviewed more than 8,000 claimed child victims of sexual abuse and testified to patterns of disclosure and victimization.

Procedural Posture & Holding: The jury found Given guilty of sexual assault, and the court sentenced him to 70 years in prison with 20 suspended. Given appeals, and the Supreme Court affirms.

Reasoning: (1) Under Rule 404(b), evidence of prior acts may not be used to prove a person’s character to show that the person acted in conformity with that character. The court complied with the proper process in allowing AU to testify. Given contended his actions toward KF were unintentional mistakes, and the district court properly allowed AU’s testimony to refute that.

(2) Given argues his Confrontation Clause rights were violated by his inability to cross-examine witnesses on topics excluded by the court. Looking at each witness’s testimony, the Court concludes that the district court did not abuse its discretion.

(3) The Court holds that the district court did not abuse its discretion in admitting Dutton’s testimony into evidence.