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Onstad v. Payless ShoeSource8/24/2000
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A. My experience, a suspect doesn't decide one day he is going to go out and sexually assault someone. This is something that he has worked up to over and over. You learn it's not about sex. It's a power issue. He was using power here. It's about being in control.
Over and over, as I said, they don't go out and decide one day they are going sexually assault someone. They start by going to the mall and watching victims or potential victims. Maybe touching themselves. Then that is not enough. They graduate to exposing themselves to people. It's a shock value.
In this case, we found, just what had been going on in Billings, that this was escalating. He had been going all over Billings exposing himself or propositioning females. Now all of a sudden that is not enough, and until September of '97, that is what he had been doing. On this night that wasn't enough.
Q. Have you had discussions, as part of your training and part of your work in trying to prevent and minimize the damage from these types of crimes, they are foreseeable? They are going to happen, aren't they?
A. Yes, they are.
Q. Sometimes we predict the future by reviewing the past in particular locations?
A. Yes, we do.
MR. SPEAR: I'm going to object. This is way beyond lay opinion.
Q. [by Mr. Edwards]: I'm asking you in terms of strictly a lay opinion. I'm talking about your experience and your training and your patrolling the streets for us here in Billings, are you confining all your answers to that?
A. Yes, I am.
Q. My question was, when there are those types of events occurring, it's foreseeable that it's going to happen again in a locale, isn't it?
MR. SPEARE: I object. Same objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: I would think, yes.
81 This testimony goes well beyond responding to the issue of what was said by the Billings Police Department Officers in handling the prior incidents.
Officer Leonard offered psychological testimony about sex offenders in general ("they" start out by going to the mall--"they" graduate to exposing themselves). She testified as to what "we found," i.e., the Billings Police Department. Officer Leonard was not testifying as to matters of common knowledge or experience nor was her testimony based upon her personal perceptions as to this incident or this offender. Rather, like the assistant fire chief in Massman, she was offering expert testimony based upon her experience and training as a police officer. This testimony clearly exceeded the scope of Rule 701, M.R.Evid., and the District Court abused its discretion in not sustaining Payless's objection.
82 Onstad cites to our decision in Hislop v. Cady (1993), 261 Mont. 243, 862 P.2d 388, as authority for allowing Officer Leonard to give opinion testimony under Rule 701. Hislop contended that the trial court erred in allowing Officer Crick to give his opinion as to the cause of the accident in question. Without referencing the Rules of Evidence, this Court noted that Officer Crick had "extensive experience in investigation and was properly qualified through training and experience to testify as to his opinion regarding the cause of the accident." Hislop, 261 Mont. at 249, 862 P.2d at 392. Although the Court did not reference the Rules of Evidence, Onstad argues nonetheless that the decision "obviously deals with Rule 701 foundational criteria (perception, experience, assistance to jury on fact in issue)." Onstad reads too much into the Hislop decision. The fact that a foundation for the officer's testimony was based upon trainin
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