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State v. Bauer1/15/2002
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Did the District Court abuse its discretion by declining to give a jury instruction on weak and less satisfactory evidence?
Bauer asserts Amanda's testimony should be viewed with distrust for two reasons. First, he claims the State chose not to offer Amanda's torn pajamas to corroborate Amanda's testimony that her father ripped her nightshirt when he forced her to have sexual intercourse with him. The State responds on appeal that Bauer never demonstrated the availability of the torn pajamas as evidence. Second, Bauer asserts the testimony of Amanda's psychological counselor regarding the impact of the incestuous rape on Amanda's emotional and psychic well-being constitutes stronger and more satisfactory evidence of the crime than Amanda's own testimony. The State replies that the prosecution accepted a pre-trial agreement to forego presentation of evidence of rape-trauma syndrome in exchange for denying the defense access to Amanda's mental health records.
Bauer's proposed jury instruction is based on § 26-1-303(5), MCA, which provides:
If weaker or less satisfactory evidence is offered and it appears that it is within the power of the party to offer stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.
After a discussion involving both counsel, the District Court declined to give the requested instruction, but concluded the defense could make an argument regarding weaker or less satisfactory evidence in its closing statement to the jury. The court recognized that the instruction amounts to a comment on Amanda's credibility and the weight to be given to her testimony. We agree with the District Court that such comments are better reserved for closing arguments and hold the court properly exercised its discretion in rejecting the proposed instruction.
CONCLUSION
Bauer's conviction of the offense of incest is supported by sufficient evidence, and each of the challenged evidentiary and procedural rulings of the District Court falls within the court's discretionary authority. We conclude the District Court properly denied Bauer's motion for a directed verdict and did not abuse its discretion.
Affirmed.
JIM RICE
We concur:
KARLA M. GRAY
JIM REGNIER
W. WILLIAM LEAPHART
JAMES C. NELSON
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