APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2011-3 Honorable Jeffrey M. Sherlock, Presiding Judge
The opinion of the court was delivered by: Mike McGRATH
Submitted on Briefs: March 13, 2013
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Jeffrey Edward Baker appeals from his conviction and sentence for sexual assault in violation of § 45-5-502, MCA. We affirm the conviction but decline to address the claim of ineffective assistance of counsel.
¶2 Baker presents issues for review which we restate as follows:
¶3 Issue One: Whether the District Court erred by admitting into evidence a recorded interview with the victim.
¶4 Issue Two: Whether there was sufficient evidence to support the conviction.
¶5 Issue Three: Whether the District Court erred in denying Baker's motion for a new trial.
¶6 Issue Four: Whether Baker's attorney provided ineffective assistance at trial.
PROCEDURAL AND FACTUAL BACKGROUND
¶7 In 2006 Baker began a relationship with the mother of H.B., who was then age 2. When H.B. was age 4 she told her mother about sexual contact Baker had with her, which Baker denied. H.B.'s mother eventually moved out of Baker's residence and in 2010 H.B. told her mother that Baker touched her inappropriately. "He touches his pee to my pee pee and it kind of hurts." H.B.'s mother called the police.
¶8 A trained forensic interviewer, Dawn Spencer, interviewed H.B. prior to trial. H.B. was reluctant to talk about Baker but told Spencer that Baker touched her inappropriately "in a bad way," and put his privates into her privates.
¶9 In an interview with a Sheriff's Department detective, Baker denied any inappropriate contact with H.B. In 2011 the State charged Baker with felony sexual assault based upon incidents of sexual contact with H.B. between 2006 and 2010.
¶10 H.B. was age 7 when she testified as the first witness at Baker's jury trial in January, 2012. She testified that Baker was mean and that she was afraid of him but refused to elaborate. The following exchanges on direct examination are typical of H.B.'s testimony at trial:
Q: And do you-do you and your dad [Baker] have a secret?
A: Yes, but I'm not telling you it.