Opinion
DA 17-0015
01-15-2019
STATE OF MONTANA, Plaintiff and Appellee, v. GERALD OWEN WALLACE, Defendant and Appellant.
COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Joshua Racki, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC-14-367 Honorable John A. Kutzman, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Joshua Racki, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana Filed: /s/_________
Clerk Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Gerald Owen Wallace was charged in the Eighth Judicial District Court with:
(1) Count 1, felony incest, in violation of § 45-5-507(1), MCA, for Wallace's alleged improper sexual contact with his granddaughter M.H.;The Cascade County jury convicted Wallace of Counts 1, 2, and 3. The jury found Wallace not guilty of Count 4. The jury found that since C.G.W. knew of the recording more than one year prior to the charges, the statute of limitations had expired on the surreptitious recordation charge. Wallace raises six issues on appeal, which we consider in turn.
(2) Count 2, felony incest, in violation of § 45-5-507(1), MCA, for Wallace's alleged sexual intercourse with his daughter T.W.D.;
(3) Count 3, attempted felony incest, in violation of § 45-5-507(1), MCA, for Wallace's alleged attempted improper sexual contact with his son J.W.; and
(4) Count 4, misdemeanor surreptitious recordation, in violation of § 45-5-223(1), MCA, for Wallace's alleged video recording of his adopted daughter C.G.W.'s genital area while she was sitting at a computer desk.
Jury Instructions
¶3 Relevant to Count 3, the District Court instructed the jury that "[a] person commits the offense of Attempted Incest when, with the purpose to commit the offense of Incest the person commits any act toward the commission of the offense of Incest. The fact that the offense of Incest was or was not completed does not prevent conviction for the offense of Attempted Incest." (Instruction No. 20). Wallace objected to Jury Instruction No. 20, arguing that the term "any act" was not a correct definition of attempt and that it should include a "substantial step" toward the commission of the offense. The District Court overruled the objection, noting that the language of Instruction No. 20 mirrored the language of the pattern jury instructions and of § 45-4-103, MCA, and that the statute does not contain the language "a substantial step." ¶4 Wallace asserts that the jury should have been instructed that the act element required a significant or substantial step towards completing the offense. Wallace maintains that an essential element of every attempt offense in Montana is an overt act that was some appreciable fragment of incest and reached far enough toward the accomplishment of incest to amount to the commencement of the consummation, citing State v. Colburn, 2016 MT 246, 385 Mont. 100, 386 P.3d 561; State v. Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 74; and State v. Mahoney, 264 Mont. 89, 870 P.2d 65 (1994). ¶5 We review jury instructions in criminal cases to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Ring, 2014 MT 49, ¶ 13, 374 Mont. 109, 321 P.3d 800. District courts have broad discretion when instructing a jury, and the party assigning error to an instruction must show prejudice in order to prevail. Ring, ¶ 13. This Court has "long upheld jury instructions [that] reiterate[e] statutory language." State v. Himes, 2015 MT 91, ¶ 42, 378 Mont. 419, 345 P.3d 297 (citing State v. Hudson, 2005 MT 142, ¶ 21, 327 Mont. 286, 114 P.3d 210 (holding that "[t]he District Court's jury instruction mirrored the language of the statute and thus correctly set forth the law applicable to the case")). ¶6 Section 45-4-103(1), MCA, provides that "[a] person commits the offense of attempt when, with the purpose to commit a specific offense, the person does any act toward the commission of the offense." The cases on which Wallace relies do not hold that trial courts must use a separate definition of "act" in jury instructions beyond what the statute provides regarding attempt. At issue in Colburn and Gunderson was the sufficiency of the evidence for attempt, not whether the district court abused its discretion in instructing the jury. Colburn, ¶¶ 8-17; Gunderson, ¶¶ 56-62. And in Mahoney, this Court discussed voluntary abandonment of attempt, not the adequacy of jury instructions. Mahoney, 264 Mont. at 97-101, 870 P.2d at 70-72. The jury instructions were not at issue in those cases, and we did not hold that a more restrictive jury instruction is required for the act element of attempt. Without contrary direction from this Court, the District Court did not abuse its discretion when it instructed the jury on the attempted incest offense in accordance with the text of the statute. See Hudson, ¶ 21. ¶7 Wallace also challenges the jury instructions relating to Count 1. The District Court gave a general unanimity instruction for all counts and told jurors that Wallace was charged with Count 1 against M.H. It provided the jury with a verdict form that asked the jury simply to find Wallace guilty or not guilty of Count 1, felony incest. The court did not instruct the jury as to unanimity regarding the specific acts charged in Count 1. ¶8 Wallace argues on appeal that the State alleged three discrete incidents of incest under Count 1: (1) M.H.'s testimony that while in her bedroom, Wallace made her touch his penis through his underwear; (2) M.H.'s testimony that while playing on the couch, Wallace had made her touch him through his underwear; and (3) Dr. Nancy Maynard's testimony that M.H.'s healed injury evidenced sexual assault by Wallace. Wallace asserts that lacking a specific unanimity instruction, there is a genuine possibility that different jurors could have believed different allegations and voted for guilt on Count 1, without the jury unanimously agreeing on any one of the alleged acts. Wallace did not raise this objection in the District Court and did not preserve the issue for appeal. He urges us, however, to exercise plain error review of this alleged error. ¶9 "We discretionarily may review claimed errors not objected to at trial that implicate a defendant's fundamental constitutional rights where the error may result in a manifest miscarriage of justice, may leave the question of fundamental fairness of the trial unsettled, or may compromise the judicial process's integrity." State v. Clemans, 2018 MT 187, ¶ 20, 392 Mont. 214, 422 P.3d 1210. We review for plain error sparingly, on a case-by-case basis. Clemans, ¶ 20. To reverse a decision for plain error, Wallace must "firmly convince" this Court of the plain error. State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531, 408 P.3d 142 (citing State v. Favel, 2015 MT 336, ¶ 23, 381 Mont. 472, 362 P.3d 1126). ¶10 We have declined to exercise plain error review of a district court's failure to give a specific unanimity instruction where the defendant did not object or request such an instruction at trial. See, e.g., State v. Auld, 2006 MT 189, ¶ 17, 333 Mont. 125, 142 P.3d 753, overruled in part on other grounds by Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861; State v. Gallagher, 2005 MT 336, ¶¶ 20-21, 330 Mont. 65, 125 P.3d 1141; State v. Gray, 2004 MT 347, ¶ 22, 324 Mont. 334, 102 P.3d 1255; State v. Harris, 1999 MT 115, ¶ 12, 292 Mont. 397, 983 P.2d 881. Although the State originally charged Wallace with Count 1 based on both sexual contact and intercourse, the State made it clear that it was seeking a conviction under the sexual contact theory. During closing, the State acknowledged to the jury that Dr. Maynard's findings of a healed injury supported a finding that M.H. had been sexually abused but were not conclusive. Wallace's contentions and the record fail to persuade us that declining to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process. Akers, ¶ 10. We therefore decline to exercise plain error review of the merits of Wallace's claim.
Sufficiency of the Evidence
¶11 J.W., the alleged victim of Count 3, attempted incest, testified as follows:
There was a morning in particular I remember, around six years old that—it wasn't uncommon for my dad, when he got off work, to come downstairs and check on us kids to make sure we were in bed, make sure we didn't have our TVs on, that kind of thing.J.W. testified that on at least one occasion, he confronted Wallace about the incident, and he remembers Wallace telling him that it had never happened to anyone else and it would never happen again. J.W. testified further that when M.H. accused Wallace of inappropriate sexual contact, it "did bring back up [his] situation." When Wallace denied M.H.'s accusations, J.W. asked him, "What about me? What about me? Did that not happen, too?" Wallace would not reply to him. ¶12 Wallace argues that the attempted incest charge must be dismissed on appeal because the State's evidence that Wallace kissed his six-year-old son's stomach was insufficient to prove the act element of attempted incest. Wallace maintains that "[a] parent lying down with his sleeping six-year-old and kissing his stomach is not an 'appreciable fragment' of incest." ¶13 We review a challenge to the sufficiency of evidence to determine whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Michelotti, 2018 MT 158, ¶ 9, 392 Mont. 33, 420 P.3d 1020. It is the jury's role as factfinder to evaluate the credibility of witnesses, weigh the evidence, and ultimately determine which version of events should prevail. State v. Bekemans, 2013 MT 11, ¶ 20, 368 Mont. 235, 293 P.3d 843. We review a jury's verdict to determine only whether sufficient evidence supports it, "not whether the evidence supports a different conclusion or verdict." State v. Jackson, 2009 MT 427, ¶ 23, 354 Mont. 63, 221 P.3d 1213. "We will not substitute our judgment for that of the jury, and will assume every fact which the jury could have deduced from the evidence." Jackson, ¶ 23. ¶14 A person commits the offense of incest if the person has sexual contact with a descendant. Section 45-5-507(1), MCA. Sexual contact includes "touching of the sexual or other intimate parts of the person of another, directly or through clothing." Section 45-2-101(67), MCA. "A person commits the offense of attempt when, with the purpose to commit a specific offense, the person does any act toward the commission of the offense." Section 45-4-103(1), MCA. The District Court instructed the jury consistent with these statutes. ¶15 A review of the trial transcript reveals sufficient evidence for the jury to find that the incident was more than an "ordinary and permitted occurrence." J.W. testified that Wallace repeatedly kissed him on the stomach while he was sleeping, that he tried to move away from the contact, that he later confronted Wallace about it, and that other inappropriate sexual contact allegations triggered memories of the incident. Viewing this evidence in the light most favorable to the prosecution, the jury reasonably could have found that Wallace's acts went beyond ordinary parental affection and that, had J.W. not moved to thwart his father's advances, Wallace would have consummated sexual contact. We conclude that the State presented sufficient evidence to support the jury's Count 3 verdict.
But this particular time, I remember him climbing in my bed with me, and he was rubbing on my stomach, kissing on my stomach, and I—you know, tossed, turned, tried to pretend it was a bad dream, pretend you're sleeping as hard as you can. That went on for—I don't know what time duration, but it went on for a few minutes anyway.
He was kissing on my stomach, and at that point, I just—I kept curling up in the blankets and tossing and turning and eventually he got up and left.
Evidentiary Ruling
¶16 Wallace argues that the District Court improperly excluded evidence that Wallace's son J.W. and son-in-law I.D. (T.W.D.'s husband) sexually abused C.G.W. Wallace claims that the evidence would have explained the family's motive to falsely accuse him in order to preempt action against J.W. and I.D. on C.G.W.'s accusations against them. Because Wallace was not charged with sexual contact with C.G.W, the court concluded that the evidence would not disprove any of the charges that would be going to trial. Additionally, since J.W. was the alleged victim of Count 3, the plain language of the Rape Shield Statute, § 45-5-511(2), MCA, required exclusion of the evidence as it pertained to J.W. The court concluded that, in addition to C.G.W.'s allegations not being relevant, they would create confusion for the jury when there were no allegations concerning C.G.W. as a victim of sexual abuse. ¶17 Wallace contends that the District Court erred in barring evidence that the victims were motivated to falsely accuse him by their desire to preempt and discredit reports of alleged abuse perpetrated by other family members. He also argues that since I.D. was not a victim, he was not covered by the Rape Shield Statute, and the evidence should have been admitted. ¶18 District courts have broad discretion in determining the relevance and admissibility of evidence. State v. Walker, 2018 MT 312, ¶ 11, 394 Mont. 1, ___ P.3d ___. A court abuses its discretion if it acts arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. Walker, ¶ 11. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M. R. Evid. 401. Relevant evidence generally is admissible unless otherwise provided by constitution, statute, or the Rules of Evidence. M. R. Evid. 402. Evidence concerning the sexual conduct of a victim is inadmissible in sexual crimes prosecutions, except as evidence of the victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease that is at issue. Section 45-5-511(2), MCA. The victim's protections must be balanced against an accused's right to present a defense. State v. Colburn, 2016 MT 41, ¶ 25, 382 Mont. 223, 366 P.3d 258. ¶19 The District Court heard extensive testimony and argument regarding the admissibility of C.G.W.'s allegations against J.W. and I.D. J.W. was the alleged victim of Count 3 against Wallace, and the court determined that allegations of sexual contact with C.G.W. did not meet the exceptions to the Rape Shield Statute. The District Court stated that although I.D. did not have any rights under the Rape Shield Statute, that did not necessarily open the door for the evidence to be admitted. The court stated in its written and oral rulings that the evidence was irrelevant and "basically seeks to answer a question nobody is asking." And C.G.W.'s allegations against J.W. and I.D. were speculative and unsubstantiated. She had made allegations in 2008 that Wallace abused her, but despite being interviewed by police she made no allegation against J.W. or I.D. until months after Wallace had been charged. After a full review of the record and the District Court's thorough consideration of the issue, we conclude that the District Court did not act arbitrarily, without employing conscientious judgment, or exceed the bounds of reason, resulting in substantial injustice. The District Court did not abuse its discretion when it barred C.G.W.'s testimony regarding sexual abuse allegations against J.W. and I.D.
Surreptitious Recordation
¶20 Denying Wallace's motion to dismiss Count 4 as barred by the statute of limitations, the District Court found that the text of the surreptitious recordation statute, § 45-5-223, MCA, did not answer the question of when the statute of limitations begins to run. The court concluded that surreptitious recordation is a continuous offense and that the statute of limitations begins to run when the criminal activity stops. The factual question for the jury therefore was when C.G.W. knew that Wallace was recording the video under the desk. If C.G.W. was aware of the recording prior to February 25, 2014, then the statute of limitations for Count 4 had expired. The video and related testimony were presented to the jury. The verdict form instructed the jury that if it determined that C.G.W. was aware Wallace was videotaping her under the desk prior to February 25, 2014, then it must find Wallace not guilty of Count 4. The jury found that C.G.W. knew about the video prior to February 25, 2014, and therefore found Wallace not guilty of Count 4 as directed. ¶21 Wallace argues that the District Court's failure to dismiss Count 4 interjected a prejudicial video into the incest trial. He contends that the trial depended on his denials and protestations of innocence, and the introduction of the video likely tainted the jury regarding his credibility on the other three counts. He argues further that even though the District Court found that the video was admissible as "primary evidence of a charged offense," the video would have been inadmissible under Mont. R. Evid. 403 and 404(b). ¶22 A district court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. M. R. Evid. 403. We review a district court's evidentiary rulings, including whether to exclude evidence due to danger of unfair prejudice, for abuse of discretion. State v. Belanus, 2010 MT 204, ¶ 15, 357 Mont. 463, 240 P.3d 1021. Rule 403 does not allow relevant evidence to be excluded simply because it is prejudicial to the opponent. Belanus, ¶ 14. "In a criminal prosecution, almost all evidence offered by the prosecution is going to be prejudicial to the defendant." Belanus, ¶ 14. A trial court thus has discretion to exclude relevant evidence that poses a danger of unfair prejudice if that danger "substantially outweigh[s]" the evidence's probative value. Belanus, ¶ 14. Evidence of other crimes, wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. M. R. Evid. 404(b). ¶23 The District Court correctly observed that "Rule 404(b) does not require exclusion of other crimes evidence even when a propensity purpose 'predominates,' so long as there is another permissible purpose such as motive," citing State v. Dist. Court of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 62, 358 Mont. 325, 246 P.3d 415. When it denied Wallace's motion to sever Count 4, the District Court concluded, "That other permissible purpose applies here." The court ruled, "If the jury infers Mr. Wallace is sexually attracted to young children in his own family, that inference in turn tends to support the required statutory motive of sexual gratification [for Counts 1, 2, and 3]." The video informed the jury's understanding of Wallace's motive for the alleged offenses—sexual gratification from children in his home—and was therefore probative. The video also was probative in proving identity on the other counts because Wallace denied all improper sexual contact with his children but admitted to placing the recorder to video C.G.W.'s genital area under the desk. The District Court did not err in admitting the video to prove motive and identity, or in concluding that its probative value was not substantially outweighed by any danger of unfair prejudice. Because the video was admissible under M. R. Evid. 403 and 404(b), we do not reach the issue whether surreptitious recordation is a continuing offense or when the statute of limitations expired. ¶24 The cumulative errors doctrine requires reversal if a number of errors, taken together, have prejudiced a defendant's right to a fair trial. State v. Novak, 2005 MT 294, ¶ 35, 329 Mont. 309, 124 P.3d 182. Wallace has not established any errors. ¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents questions controlled by settled law or by the clear application of applicable standards of review. The District Court's interpretation and application of the law were correct. The District Court's rulings were not an abuse of discretion. We affirm.
/S/ BETH BAKER We Concur: /S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JIM RICE