*1
MONTANA,
STATE OF
Appellee,
Plaintiff and
v.
KEITH
DARWIN
BEROSIK,
Appellant.
Defendant
DANo.
07-0731.
Submitted on Briefs December
2008.
August
Decided
For General; Bullock, Attorney Montana Appellee: For Hon. Steve Helena; General, Ed Wellenstein, Attorney Assistant Micheál S. Adams, County Attorney; Deputy Lori County Flathead Corrigan, Attorney, Kalispell. the Court. Opinion WARNER delivered
JUSTICE of two Berosik was convicted by jury, Darwin Keith After trial ¶1 District, Judicial Court of the Eleventh of incest in the District counts State years in the Montana County. He sentenced to 30 Flathead was following issues on Berosik raises the suspended. Prison with appeal: Berosik was judgment be reversed because Issue 1: Must
¶2 dire? excluded from individual voir by question posed Issue We conclude that the answer
¶3 Thus, Athough trial. we Berosik is entitled to a new must be ‘Ves.” conviction, to address other appropriate we deem it reverse Berosik’s issues, again upon retrial. See State they as are almost certain to arise Michaud, v. determining a child abuse 2: Did the District Court err Issue grooming testify concerning concept
expert qualified was to child sexual abuse cases? admitting err in evidence of 3: Did the District Court Issue
acts Berosik? to denying err in Berosik’s motion Issue 4: Did the District Court by his wife? gathered evidence which was suppress BACKGROUND FACTUAL AND PROCEDURAL Berosik began living with Wanda Berosik married B.W., age 15. R.W., age and M.W. daughters, age and her three a truck driver. jobs on his as girls accompanied The three often Berosik During trips, puberty, these Berosik would discuss make comments bodies, girls’ time, about the and tell them were beautiful. Over sexually graphic. Berosik’s comments became more B.W., On his trips with Berosik would talk to her about prostitutes, inquire activity, into her sexual promote pornography, specifically dealing family books having with members sex. When she was telephone B.W. incurred a bill of $400. Berosik told B.W. she could help pay gave offher debt if she him oral sex. B.W. did not respond. When B.W. was Berosik Disneyland. took her to During this trip, bought Berosik B.W. a vibrator and a pair fuzzy handcuffs. R.W. started riding with Berosik in his truck when she was
During trips spoke he to her promoted about sex and pornography. time, One attempted grab Berosik to R.W.’sbreast. When R.W.was she told Berosik she was curious to see how a man masturbated. Berosik masturbated in During front of her. later trips, gave pornography. R.W. incest On a trip Disneyland, R.W. and Berosik stopped at a convenience store where Berosik asked get R.W. to prostitute for him. She did as she was asked and then went into the returned, store. When she Berosik asked her if she wanted a prostitute and offered pay for the service. R.W. declined. *3 bought Berosik gifts. R.W. several One was a tank top that
Berosik told R.W. to wear without a bought bra. He also her a vibrator and a penis-shaped sucker. He later asked her if she used the vibrator. In March 2005 when she was began dating R.W. a 26-year-old man Wesley. named began asking Berosik her about sexual activity boyfriend. with her While Wanda and town, Berosik were out of M.W. caught R.W. and Wesley together and told Berosik. Berosik told R.W. goto to his brother’s house until he picked returned. When he up R.W. brother’s, at his he told her he would not tell Wesley Wanda about but return, in R.W. would have to “do [him] favor.”R.W. testified at trial that she understood this to mean sexual favors because Berosik had requested them before. Berosik told prove R.W. that to she would deal, adhere to the she must take off her shirt and bra. initially R.W. told him no. Berosik then told Wesley R.W. that would have to go jail if Wanda found out because years R.W. was under 16 old and Wanda would call police. R.W. took off her shirt and Berosik fondled her day, breasts. Later that Berosik asked perform R.W.to oral sex on him. She said no. Berosik reminded Wesley her that could go to jail. Berosik then masturbated and had perform R.W. oral sex on him. Eventually, told R.W. her mother about Berosik’s actions. Her mother told her that she would tell police but would wait because she paycheck. Berosik’s needed sneaking caught her Berosik B.W. was In March when to take off her told B.W. boyfriend. Berosik to see her of the house
out told, B.W. did as keys to her car. take the or he would shirt and bra Later, Berosik fondled her breasts. on. Berosik leaving her sweater yes put said and sex. She performed oral if she ever asked B.W. later, Berosik went nights A couple mouth. in her penis day, Berosik told The next her breasts. room and fondled into B.W.’s ‘jump [B.W.’s] away, he wanted her mother was B.W. that while to avoid Berosik. mother to run errands with her B.W. went bones.” returned, away. car Berosik took her she When R.W., B.W. actions with told B.W. about Berosik’s Wanda When Eventually, Wanda told contacts with her. Berosik’s sexual revealed also told daughters. She sexually had assaulted her Berosik police toys sex she found had searched their home where police she up She boxed these in and R.W.’s bedrooms. incest B.W. books about bring the told Wanda to box storage. police them in The put items and storage items from the brought she to the sheriffs office. Before Berosik’s truck and the she searched department, to the sheriffs shed sexually materials. She delivered explicit and found more again, house enforcement. all of these items to law Berosik charging an information the State filed June The information was later intercourse without consent.
with sexual alleged I Berosik had three counts of incest. Count charge amended to The II he had oral sex with R.W. alleged B.W. Count oral sex with Count III was occurred in March 2005. alleged to have offenses appeal. of this severed and is not contained the support of the information The affidavit concerning bargains and B.W. provided R.W. statements (that incest he would alleged them about the
Berosik had made with if did not have away take B.W.’s car boyfriend turn in R.W.’s him) acts. resulting and the sexual oral sex with 2006. The were first tried June charges against Before the trial was scheduled. hung jury. in a A second trial resulted acts intent to introduce other trial, the State filed notice of its second 404(b) *4 rule. and/or the transaction to M. R. Evid. pursuant the to introduce into evidence notice that it would seek gave The State books, handcuffs, The State fuzzy and vibrators. pornography incest concerning testimony of R.W. and B.W. to introduce the proposed also made to Berosik suggestive comments prior the sexual contacts of the incest part this evidence was a The State asserted them. so as to grooming girls the it that Berosik was proved transactions as make it easier for him sexually to later assault them. The State also proposed expert testimony to introduce jury to assist the understanding the concept grooming, which the State avers is grounded in sound research. Berosik moved in physical limine to exclude the and testimonial grooming
evidence of as inadmissible character evidence because the acts were remote in time and did not fall within the exceptions of M. 404(b). R. Evid. He also moved to exclude the expert testimony, claiming expert was not qualified. Berosik also filed a motion to suppress gathered the evidence
his wife Wanda. argues Berosik that Wanda acted agent as an of the State and, when she searched his home because the police failed to warrant, obtain a search the items were illegally seized. The District Court denied all of Berosik’s motions to exclude
evidence. A jury second trial was held in March 2007. The District Court
determined it would conduct individual venirepersons voir dire of who had personal experience with child or sexual abuse. Berosik claims on appeal he was excluded from the individual voir dire conducted in the judge’s chambers. During trial, before ruling on Berosik’s motion to exclude evidence,
grooming the court heard the testimony of the State’s proposed child specialist abuse presence outside the jury. of the After hearing testimony, witness’s the District Court either admitted or part excluded each proposed prior acts evidence listed in the State’s notification. The District Court based its decisions on whether the evidence went to grooming, show which the court considered as included as of the transaction charged incest, or whether it 404(b). fit under an exception to M. R. Evid. instances, a few District Court concluded the evidence was admissible under both rules. The District Court allowed testimony regarding Berosik’s comments about prostitutes; Berosik masturbating in front of R.W. in 2001; Berosik’s discussions puberty, girls’ bodies, about their activity, sexual pornography sex; his distribution pornography; proposition perform 2003 that B.W. oral sex pay offher debt for the phone bill; Berosik’s statements that he would like to “make love to”R.W. and that ‘jump bones”; B.W. was to [his] fondling R.W.; B.W. and Berosik’s mandate that the doors to R.W. and B.W.’s bedrooms locked; not be and Berosik’s request to Wanda that their bedroom remain open while had sexual intercourse while girls present in the home. The District Court ruled that the physical evidence-incest
21 not be handcuffs, a vibrator-would books, fuzzy pornography However, the too prejudicial. it was because into evidence admitted they got, testify what could about girls that the ruled Court District was, and impression their saw, they what perceived, what what them. it affected how the jury on before then testified expert witness The State’s
¶25 As a for sexual abuse. grooming a child characteristics general opinion an on express did not stated she testimony, she of her credibility. any witnesses’ The District of incest. guilty of both counts jury found above, appeals. and he him as noted Court sentenced REVIEW OF STANDARDS right defendant’s a criminal court has violated a district Whether a trial stages of the defendant’s all critical present at to be Price, 2009 State v. matter, plenary. review is thus our constitutional 272, P.3d 298. 129, 19, Mont. 207 MT 350 ¶ left to the admissibility evidence are Rulings regarding court, not overturned absent trial and will be discretion of the sound 344, Bar-Jonah, MT 2004 State v. showing of an abuse of discretion. 353, 361, Ford, 1229; 278 Mont. 278, 102 P.3d State v. 324 Mont. ¶ in applies discretion standard also 245, 249-50. The abuse of 296 P.2d of other to admit evidence decision whether reviewing a trial court’s Crosley, 2009 MT crimes, ¶ See State v. wrongs or acts. Aakre, MT Bar-Jonah, 97; 223, 206 P.3d
Mont. of evidence 403, 46 (concerning admission 101, 8, 309 Mont. P.3d 648 404(b)). under M. R. other acts of a defendant Evid. suppress denial of a motion a district court’s We review erroneous, clearly findings of fact are determine whether law. facts as a matter of correctly applied those whether the court MT 350 Mont. Hilgendorf,
DISCUSSION Berosik was judgment be reversed because Issue 1: Must excluded individual voir dire? from during present appeal on that he was Berosik asserts not reflect whether individual, dire. The record does in-chambers voir jurors potential the court examined present Berosik was when judge that the district announced transcript The trial shows chambers. said, ‘We will and then individual dire be held chambers voir would The minutes of one at a time.” [chambers] meet with counsel in The State present. Berosik was Clerk of Court do not indicate that nothing offers to rebut Berosik’s claim he present was not during individual, in-chambers voir dire. A right defendant’s to be present during all stages of a criminal
prosecution is a fundamental right guaranteed by the Montana and Bird, United States Constitutions. 23-24, 308 Mont. A266. defendant has the right present to be during stages critical of the proceeding and at all during times the trial when something is done which right affects his to a fair Reed, trial. State v. (1922). 51, 56-57, 210 P. Conducting individual vóir dire in stage Bird, chambers is critical of the trial. Because involving jury errors selection affect trial, the fairness ofthe excluding *6 a defendant from in-chambers voir dire absent an express waiver on error, the record is structural which requires Bird, reversal. 39-40. The record does not ¶33 show that Berosik present was during the in-chambers voir dire. The parties do dispute that Berosik did not waive his presence. Applicable precedent instructs that Berosik’s exclusion from chambers during individual voir dire constituted structural error. The conviction must be reversed and the case remanded for a new trial. Issue 2:
¶34 Did the District Court err in determining the child abuse expert qualified give was opinion to her ?
¶35 asserts that the District Court «erred in allowing the State’s child expert abuse to testify because she did not have extensive first hand experience sexually with and non-sexually children, abused did not have a thorough and up-to-date knowledge of the professional literature on abuse, child sexual objective and was not and neutral about this case. See State v. Scheffelman, 250 334, 342, 820 Mont. P.2d 1293, (1991); Riggs, Mont. The record reveals that expert State’s is a licensed marriage and family counselor with a degree Master’s and she has commenced a dissertation on disclosure of child sexual abuse. She has experience extensive in working with those convicted of offenses involving aggression, sexual providing sex offender treatment to both adults juveniles, and providing family and group counseling to dealing those with sex offenses as well as persons dealing with non sexual child abuse. She has conducted thousands offorensic interviews and testified expert as an states, several including Montana. After examination of the record we conclude the did District Court not abuse its discretion in allowing expert present to opinions her jury. in admitting prior Issue 3: Did the District Court err of acts Berosik? expert The State’s witness described the characteristics of what grooming potential constitutes the child victims of sexual abuse. The witnesses, B.W., R.W., complaining District Court then allowed the others, Berosik, testify to about acts of which occurred over prior years his The relationship the course the several with victims. District Court ruled these acts were evidence that Berosik was grooming victims, his intended child and thus of the sought prove. transactions the State appeal, expert testimony grooming On Berosik contends the on improperly
was admitted as it is not relevant under M. R. Evid. highly and is prejudicial profiling evidence which be excluded should pursuant to M. R. Evid. 403. Montana, expert testimony explaining complexities ofchild
sexual abuse for the purpose assisting jurors understanding and evaluating a testimony Morgan, child’s is admissible. State v. MT 268, 29, 291 Mont. Donnelly, 968 P.2d 244 Mont. 371, 378, (1990), 798 P.2d grounds, overruled on other Imlay, testimony expert gave general State’s witness is,
information grooming; process about of eroding a victim’s (cid:127)boundaries physical touch and desensitizing them to sexual issues. Her testimony subject concerned a lay persons about which would have little or no experience. opinions She based her on her experiences and research in the field. The expert testimony is relevant in that it *7 provided jury the with information about how research and experience shows abuse aof child oftentimes does not all occur of a sudden. It provided evidence that young delay victims sometimes in disclosing abuse, piecemeal, disclose the abuse and they described how react to having sexually been abused. Berosik’s defense was that and Wanda daughters her allegations against fabricated their him they because wanted to be rid him taking away daughters’ of for the new-found freedom and going because he was to expose consensual sex with a boyfriend, which in charges against would result criminal him. In the defense, jury face of this a could conclude the evidence is in probative judging credibility witnesses, the including of the State’s and B.W. R.W, had, not, charges the decision whether the or had been beyond proven a reasonable doubt. In deciding admissibility the of evidence of other of a acts
defendant, a district court weigh must whether the evidence’s probative substantially value is outweighed by danger the of unfair
24 time, issues, a of misleading jury, the waste of the
prejudice, confusion M. R. Evid. of cumulative evidence. presentation needless or is (1991). 52, 56 136, 142, 814 P.2d evidence Matt, 249 Mont. and R.W. for groomed B.W. concerning whether in this case the acts specific Berosik committed abuse, as as whether sexual well that it is unfair. He has prejudicial not so alleged, incest is of confusing misleading. it or Nor is to rebut such evidence. opportunity admitting in such its discretion Court did not abuse The District under M. R. Evid. 403. evidence activity of sexual prior the evidence argues The State occurred before stepdaughters, Berosik and his which
between incest, and offenses, alleged transaction of the part is of the charged §26-1-103, under part as a of the transaction properly can admitted be MCA. may an 26-1-103, MCA, prior acts of accused provides Section those alleged of an criminal transaction when part admissible as
be dispute, the fact in of the transaction which is itself part acts form admissibility under the Generally, of that fact. if are evidence jury’s right to hear what predicated rule is on the transaction offense, may so that it evaluate the prior alleged to the happened criminal act occurred. See alleged in the context in which the evidence 27, 29, 349 114, 201 MT Mont. P.3d 811. To Derbyshire, ¶ rule, the transaction evidence must be under be admissible Derbyshire, 36. Evidence of acts charged of the offense. explanatory ¶ §26-1-103, MCA, evidence excluded under is not character admitted 404(b). Likewise, subject such evidence is not to the by M. R. Evid. MCA, §46-13-109, because the acts requirements notice and other wholly the transaction and not are considered to be Crosley, 48. independent alleged offense. ¶ expanded point rule must not be The transaction 404(b) character under M. R. Evid. prohibition of (Nelson Cotter, JJ., Crosley, specially & swallowed. See ¶ end, if acts is to be admitted as concurring). To this evidence of offense, are to be alleged such other acts of accused part of of, (citing to, charged Crosley, offense. explanatory linked 753). Lozon, P.3d case, Crosley, sexually the evidence of Berosik’s In this like victims, conversations, and contacts with his as charged transactions above, closely linked to and 22 and described his charges. sexualization explanatory married their mother and began shortly after he stepdaughters Thus, charged reported. to the time the incest was *8 up continued escalating evidence of Berosik’s sexual acts with these children form dispute transactions and are admissible under §26-1- 103, Crosley, MCA. See 49. denying Issue 4: Did the District Court err in Berosik’s motion to gathered by the evidence
suppress Berosik’s wife? Berosik contends that a sheriff s deputy requested bring Wanda to truck, thus, in the gathered items she in her home and Berosik’s agent issued, she acted as an of the State. As no search warrant was asserts search of the home and truck and the seizure illegal, these items is thus evidence of their existence must be suppressed. exclusionary The rule does apply private not to searches that do action,
not involve state as it private does serve to deter engaging individuals from in searches illegal would be if by Malkuch, conducted law enforcement. State v. 2007 MT 336 Mont. 154 P.3d (citing Long, 65, 71, 216 Mont. 153, 157 (1985); Christensen, 244 Mont. (1990)). P.2d daughter already and her had seized the books and sex Wanda
toys and removed them from the home before contacted law And, though enforcement. the sheriffs deputy requested that Wanda bring in, these items he did not ask her to seize more from items home, nor did he suggest to her that Berosik’s truck be searched. The correctly District Court concluded that the actions Wanda and her daughter oldest were private searches neither requested agreed nor enforcement, law and therefore the evidence obtained subject is not exclusionary Malkuch, rule. See
CONCLUSION judgment District Court is reversed and remanded for a new trial conducted in conformity with applicable law and this opinion. LEAPHART,
JUSTICES MORRIS and RICE concur. NELSON,
JUSTICE specially concurring. join I Opinion Court’s on Issues 1 particular, and 2. In as to Issue I agree involving jury errors selection are structural errors which require automatic reversal. Opinion, Matt, 31-32, 40, I But specially concur as to Issues 3 addition, note, and 4. In I as a preliminary matter, the Court’s statement of the standard incorrect, review is at incomplete. least OF REVIEW
STANDARD
*9
also
of discretion standard
“[t]he
abuse
The Court states
to admit evidence
decision whether
reviewing a trial court’s
applies in
404(b). Opinion,
Evid.
crimes,
or acts” under M. R.
wrongs
of other
251,
15,
504, 213
MT
351 Mont.
28;
Campa,
v.
2009
¶
accord State
¶
stated,
true,
that a trial court’s
have often
1102. It is
we
P.3d
e.g.
See
State
for abuse of discretion.
evidentiary rulings are reviewed
223,
932;
v.
126, 26,
206 P.3d
State
MT
350 Mont.
Crosley, 2009
¶
v.
109,
1254;
101,
19,
204 P.3d
State v.
Herman,
MT
350 Mont.
2009
¶
809;
419,
13,
354,
P.3d
State v.
Clark,
347 Mont.
198
2008 MT
¶
13,
348,
794.
Stearns,
356,
346 Mont.
195 P.3d
2008 MT
¶
a statute or
properly interpreting
no “discretion” in
But there is
299,
Mizenko,
11, 8,
2006 MT
330 Mont.
See State v.
¶
rule of evidence.
473,
Wallace,
109, 12,
MT
309 Mont.
458;
v.
2002
Hagener
¶
127 P.3d
is either correct or incorrect.
interpretation
P.3d 847. The court’s
47
Cf.
19,
326,
Swann,
126,
337 Mont.
Issue 3 3,1 respect completely agree With to Issue with the Court that the rule1 expanded point transaction “must be 404(b) prohibition of character evidence under M. R. Evid. is here, however, Opinion, prior swallowed.” 46.1 believe (e.g., sexually charged acts conversations and contacts with his stepdaughters) during years preceding charged offenses do not part dispute.” “form[] of transaction which is itself the fact Section 26-1-103, dispute” MCA. The “transaction which is itself the fact in whether Berosik had sexual intercourse with B.W. and R.W. in March incest). 45-5-507(1), 2005. Section MCA earlier (defining None those alleged events form of this transaction. Likewise, prior [the evidence of Berosik’s acts is not “evidence of 26-1-103,
fact in dispute].” guilty Section MCA. Berosik could be having sexual intercourse with his in March 2005 stepdaughters words, irrespective whether he committed the acts. In other prior sexually charged conversations contacts with his *10 in stepdaughters way “‘inextricably question are no linked to’ ’’the of girls whether he had sexual intercourse with the in March 2005.2 Crosley, (quoting Lozon, 48 753). reasons, For these I agree cannot with the Court’s reliance on the rule, 26-1-103,
transaction I again reading and fear that we are § MCA, broadly language allows, more than its contrary to the first statutory statute, maxim of interpretation: “Inthe construction ofa the judge office of the to ascertain simply and declare what is in terms therein, or in substance contained not to insert what has been omitted or to 1-2-101, omit what has been inserted.” Section MCA. The State did charge continuing not a course charged specific of conduct. It two instances of conduct alleged to have occurred in March 2005. Berosik’s sexually charged conversations and stepdaughters contacts with his at 1 declaration, act, part “Where the or omission forms a transaction which is dispute fact, declaration, act, itself the fact in or evidence of that such or omission is part 26-1-103, evidence as of the transaction.” Section MCA. qualifier ‘inextricably” qualifier: The Court omits the critical and inserts a new (‘[T]he “closely.” Opinion, [prior ¶¶ acts] See evidence of Berosik’s . . . were closely explanatory charges.’). Yet, linked to and while our transaction-rule jurisprudence clarity, is far from a model of have at least we been consistent requiring ‘inextricably” ‘inseparably” charged the evidence be or linked to the offense, merely “closely” Derbyshire, 31-32; Crosley, linked. See see also (Nelson Cotter, JJ., specially concurring), & and cases cited therein. part ] of’the instances simply do not places
other times and “form! 26-1-103, MCA. The maverick in March 2005. Section sexual contact (Nelson & Crosley, case. blipped yet to another Pac-Man has Cotter, JJ., concurring). specially per acts is se of Berosik’s say is not to that evidence This contrary, I that the evidence To the believe or inadmissible.
irrelevant of his probative State in this case was by the “grooming” proffered above, with the Court disagree I must But for the reasons stated guilt. of a transaction it ‘forms evidence is admissible because such fact.” Section or evidence of that dispute itself the fact which is 26-1-103, MCA. Acts Evidence Pursuant of Intent to Introduce Other In its Notice 404(b) Rule,” argued the State and/or the ‘Transaction
to M. R. Evid. story”rationale admitting for the evidence of Berosik’s “complete a the Yet, “complete story” the or under the transaction rule. prior acts the transaction rule threatens the circumstances” definition of “explain 404(b). R. Evid. to override M. the may only tangentially be related to
A defendant’s bad act crime, “complete story” the or charged but it nevertheless could ‘incidentally charged “explain offense or involve” “explain” If evidence did not or prosecution’s circumstances.” crime, to ‘incidentally charged it is difficult see how involve” admissibility minimal for pass requirement it could evidence prosecution [A]ll evidence be relevant. . . . relevant story. omitting The fact that completes the crime or explains story cannot slightly complete would render a less some evidence 404(b) Moreover, altogether. justify circumventing Rule story-for by furnishing a motive necessary complete instance establishing identity-typically non-propensity purpose has a 404(b). Rule no reason to relieve and is admissible under We see obligation of government and the district court from the selecting myriad non-propensity purposes from the available *11 any story. most complete (D.C. 2000) Bowie, Cir.
United States v. 232 F.3d 928-29 omitted). (paragraph break view, therefore, analyze correct is to my approach In
admissibility
pursuant
of Berosik’s
acts
to Rule
evidence
404(b),
ground
did as an alternative
for
prosecutor
which
regard,
I do not conduct here
introducing the evidence.
this
while
404(b),
agree
I tend to
-with the
analysis
a
under Rule
comprehensive
grooming
of Berosik’s
of his
prosecutor’s argument
404(b).
under Rule
stepdaughters may
“preparation”
constitute
Issue 4
the caselaw cited in 50
I
in the result of Issue based on
concur
failed to
Importantly,
Berosik has
and the facts discussed
authority
lacked
argument
appeal
on
Wanda
present persuasive
Moreover,
from Berosik’s truck.
to search for and seize evidence
turning
and
standing
prevent
seizing
Wanda from
Berosik has no
toys
“gifts”
gave
sex
which he
over to law enforcement the various
longer
no
his. See
girls.
belonged
Those items
to them
14-17,
Pickup,
State v. 1993 Chevrolet
(once person voluntarily relinquishes
intentionally