*1 STATE OF MONTANA, Respondent, Plaintiff and DANIEL J. DETONANCOUR, Appellant.
Defendant
No. 00-070.
January
Submitted on Briefs
2001.
Decided Oct.
For Mazurek, P. Respondent: Joseph Attorney For Honorable General, General; Plubell, Helena; Tammy Attorney K. Assistant Zenker, County Attorney, Virginia City. R. Robert Court. Opinion JUSTICE LEAPHART delivered the J. Detonancour was convicted of sexual Appellant Daniel ¶1 a County trial Fifth Judicial felony, in a Madison before the appeals. District Court. He affirm. follows: appeal We restate the issues on as
¶2 ¶3 by excluding its discretion 1. Whether the District Court abused prior conduct to the assault. ofthe victim’s with by admitting its Whether District Court abused discretion 2. immediately the assault. conduct after evidence Detonancour’s by allowing District Court abused its discretion 3. Whether the testify the mechanics practitioner nurse to about emergency room kit. completing rape its when it District Court abused discretion 4. Whether the testify trauma to about allowed the victim/witness advocate syndrome (RTS). whole, fully instructions, reviewed and Whether the as jury. fairly presented the law Background and
Factual Procedural 2,1998, visited May Donna Jenkins was evening On the Flesch, 24-year-old friend, and Jennifer Jennifer’s her best home come Detonancour had to son, Jennifer and Daniel Detonancour. evening, midnight after that same VCR. Sometime borrow Jenkins’s it door. saw that was by a at her She knock Jenkins awakened mother had and Detonancour’s him in. Jenkins and let Detonancour been thought she had no reason years, so she friends for ten he afraid of Detonancour. She assumed that he came over because needed someone to talk to. happened differed as to what next. Jenkins and tried to take off
testified that Detonancour shoved her to her floor said, “no-no,” attempted physically She and resist him clothes. her shirt one hand and held her to the as Detonancour took off ground frightened with his other hand. Jenkins became that if she him, her, kill might continued to resist so she allowed him had to take off her clothes. He then removed his clothes and sexual intercourse with her. got up, Jenkins testified further that after Detonancour he went daughter’s living
into her nothing wearing bedroom returned room pair daughter’s very but a of her underwear stood close him, her. In order to distract Jenkins asked Detonancour to make her kitchen, a drink. sight While he was out of in the she called 911. She only stayed on the line for about 15 seconds. The 911 operator attempted to find Jenkins’s location from the limited information contained in medical call. suspected her brief She that the call related to a
emergency ultimately in Pony contacted a woman who is trained Zimmerman. Janet arrived at a first responder emergencies, to medical Janet sitting
Jenkins’s house to find her in a chair with a blanket around her. Detonancour came into the arrived, livingroom sifter Janet him she asked to leave. having eight Detonancour testified that after seven or beers at the
Pony Bar, way he was on his home lights when he noticed that all the were on in stop by Jenkins’s house. He decided to and knocked on the in, door. Jenkins let him they together sat on the couch. Jenkins began touching his hair and flirting with him. She told him that she him, him, girlfriend wanted to have sex with and since his had left he decided to accept. they He testified that had consensual sexual afterwards, intercourse and that Jenkins asked him to make her a arrived, drink. place When Zimmerman he felt out of so he finished getting dressed and left. 13,1998, May On charging State filed an Information Daniel
¶12 consent, felony, Detonancour with sexual intercourse without a in 45-5-503, violation of MCA. § requested The State filed two motions in limine. It a court order
prohibiting offering any concerning the defense from evidence at trial alleged any Jenkins’s sexual conduct and evidence of Jenkins’s use of present alcohol. The District Court ruled that Detonancour could evidence of of the offense and could Jenkins’s alcohol use at the time conduct, sexual present past past evidence ofher sexual unless conduct was with Detonancour. Specifically, The defense also filed motions in limine. Detonancour 1) the State from
requested generally prohibiting court order: crimes, or acts wrongs, other introducing evidence at 2) from Detonancour; prohibiting the State committed allegedly 3) “victim”; the State from prohibiting referring to Jenkins as charges against filed introducing tampering of witness evidence 4) making any from mother; prohibiting the State Detonancour’s in front of that Detonancour masturbated allegations reference to 5) underwear; prohibiting wearing daughter’s Jenkins while at the time of his introducing Detonancour’s statement the State from lady.” screwing for an old pretty arrest that “this is bizarre from prohibiting motion the State granted The District Court “victim,” masturbation and referring to Detonancour’s using the term The charge. tampering of his mother’s witness introducing evidence admissibility ofDetonancour’s statement. ruling reserved on the court defense motion trial, granted Court Before the the District included offense of instructed on the lesser requesting sexual assault. jury returned a verdict of not At the conclusion consent, guilty charge of sexual intercourse without guilty to the District Court later felony. charge of sexual Prison with a years to ten in Montana State sentenced prison’s performance on Detonancour’s portion suspended based The court classified Detonancour program. treatment sexual offender as a Level III sex offender.
Discussion Issue 1 by excluding evidence Court abuse its discretion Did the District to the assault? prior of Jenkins’s conduct with regarding the court’s decisions reviewing In a district conduct of relating to the extrinsic sexual admissibility of evidence court abused victims, the district we determine whether sexual assault Jud. Dist. Dist. Court Fourth ex. rel. Mazurek v. its discretion. State 45-5-511, MCA, law, provides at rape shield codified Montana’s part: in relevant (2) the victim is conduct of the sexual concerning No evidence evidence of the except this part under prosecutions admissible or the offender sexual conduct with past victim’s origin activity to show of the victim’s sexual specific instances issue semen, which is or disease pregnancy, prosecution. *4 45-5-511, MCA, that: provide comments to compiler’s The of the victim is conduct to the' sexual pertaining [E]vidence rule is to of this purpose trial. The into evidence at admissible being the defendant against charge trial of the prevent
393 only exceptions into a trial of the victim. There are two converted directly may at issue go specific ... and both to conduct which the defendant to introduce given case. first allows prior to the sexual conduct in relation pertaining evidence victim’s Thus, sexually to himself. the victim and have been if defendant may use previous alleged rape, intimate to the the defendant added.] evidence [Emphasis to this effect. 215, 223, 870 1368, 1373. Mont. P.2d Wing
See also State case, sought In this Detonancour to enter at trial that pulled lap birthday party days prior Jenkins him onto her at a two to the assault. as sexual conduct argues He this could be construed 45-5-511, contemplated between the victim and Detonancour as in § argued MCA. At that this went to the engaged heart of his defense: that he and Jenkins in consensual sex. urges this Court to define “sexual conduct” as touches, contemplated including “lingering in the statute as notes, smoldering glances, the surreptuous passing [sic] casual persons gatherings, contact between at social and other methods of flirtatious behavior form the engage which invitation consensual Arguing sexual contact or sexual intercourse.” this issue before Court, District Detonancour’s counsel noted that “these people engaged in consensual They sexual relations. did. But he did so because she led him on.” We decline adopt this broad definition of sexual conduct. As note, compiler’s comments if Detonancour and Jenkins had been
sexually previous intimate to the that evidence would have However, not, been contrary admissible. flirtatious behavior is opinion, engage Detonancour’s an invitation to in sexual relations. An examination into the nuances of the victim’s interactions with the days defendant alleged rape effectively before an would the victim put consent, on only trial. Not is this it evidence irrelevant issue of precisely designed the harm that shield statute is prevent. parties thoroughly argued Both briefed this issue it before
the District Court. We hold that the District Court did not abuse its in excluding testimony. simply discretion It is not sexual conduct contemplated by the statute.
Issue by admitting Did the District Court abuse its discretion immediately
of Detonancour’s conduct after the assault? determining Trial whether courts have broad discretion evidence is relevant and admissible. We will not overturn a trial evidentiary ruling appeal court’s on absent an abuse of discretion. 305, 11, 297 MT Rogers, State v. ¶ ¶ *5 ¶11. testimony that ofJenkins’s challenges the admission Detonancour ¶28 and daughter’s room immediately the assault he went to after daughter’s panties. a of her livingroom wearing pair to the came back panties. of the Before introduction into evidence objects He also evidence, in limine to exclude this filed a motion the in front of Jenkins while evidence that he masturbated as well as motion granted Detonancour’s The District Court wearing panties. masturbation, allowed alleged but excluding testimony about into evidence of the and admission testimony panties, about the 26-1-103, rule, MCA. found under the transaction panties, act, declaration, or provides rule that “where The transaction in dispute is itself the fact forms of a transaction which part omission declaration, act, is evidence fact, or omission of that such or evidence as 26-1-103, Admissibility under MCA. jury’s Section part ofthe transaction.” right to hear what on the “predicated transaction rule is the transgressed the offense the commission immediately subsequent and prior in the may the evidence they evaluate charged, so a defendant occurred. Acts of the criminal act context in which crime, intertwined and alleged commission subsequent to the P.2d at 870 therewith, Wing, 264 Mont. highly probative.” are 241, 246, (1992), 836 P.2d (citing State v. Moore 607). part conduct was relevant that Detonancour’s We conclude after the immediately question occurred the transaction. actions that this testified called 911. Jenkins and before Jenkins assault fearful. conduct made her is value may probative be excluded if its Relevant evidence Rule by danger prejudice. of unfair
substantially outweighed by the outweighed value probative M.R.Evid. Whether Langford State the trial court’s discretion. effect is within prejudicial introduction of testimony and that the Detonancour contends to inflame the designed prejudicial was into evidence panties Court, the District argued before fully issue briefed jury. The was alleged concerning the testimony court excluded and that its exercised properly the District Court We hold masturbation. assault, Detonancour after the testimony by allowing discretion daughter’s of Jenkins’s wearing pair livingroom came into the masturbation. alleged testimony about excluding panties Issue by allowing the discretion its Court abuse Did the District Bortko, testify Margaret Ann practitioner, emergency room nurse kit? completing rape the mechanics about kit for demonstrative Using the sexual assault evidence collection through procedure step step the State took Bortko purposes, testimony exam. This included conducting involved in hairs, collecting fingernail scrapings, concerning combing pubic for next pelvic exam. Bortko testified drawing performing blood exam, during as well as the conduct and emotional state Jenkins’s findings medical exam. testimony as irrelevant and not objects this argues issue The State that the
probative of the ultimate of consent. consent, stating probative on the issue of voluntarily cooperated was entitled to know that Jenkins process. tedious and uncomfortable extensive, agree detailed was not probative of the ultimate issue of consent and that the District Court it. admitting abused its discretion *6 46-20-701(1), MCA, may “[a] that provides Section cause not
¶37 by against reversed reason of error committed the trial court person the convicted unless the record shows that the error was prejudicial.” recently adopted two-step analysis to determine whether an
¶38 prejudiced right error a criminal defendant’s to a fair trial and is Kirk, therefore reversible. State v. Van 2001 MT ¶ 37, 32 step 37. The first is to determine whether the ¶ ¶ Kirk, error is a structural error or a trial error. Van 37. Structural ¶ dimensions, typically precedes error is of constitutional the Kirk, proceeding. undermines the fairness of the entire 38. Van ¶ Kirk, automatically Structural errors are Van 39. reversible. ¶ during Trial errors of the case to the typically presentation occur statute, subject 46- and are to review under the harmless error 20-701(1), Kirk, MCA. Van 40. ¶ admitting The error this case was evidence that was not error, proceed is a trial so to the determination of
relevant. This we whether error the was harmless. Kirk, adopted In Van we the “cumulative evidence” test there is a the probability
determine whether reasonable might to the erroneously admitted evidence have contributed Kirk, the fact finder conviction. Van 43. This test looks to whether ¶ same facts as presented proved was with admissible evidence that addition, Kirk, quality the tainted Van 44. In evidence. ¶ evidence, of the admissible comparison quality tainted with the evidence, that it possibility must that there is no reasonable be such Kirk, conviction. Van might ¶ have contributed to the defendant’s testimony in this case to buttress Jenkins’s The State offered the intercourse with she did not consent to sexual contention before trial that he Jenkins stipulated Detonancour. Detonancour intercourse, only so the issue at trial was consent. had sexual lack of Accordingly, proving all the State’s evidence centered around consent; testimony that she did not consent. This included: Jenkins’s conduct after the assault and testimony concerning her Detonancour’s exam; rape testimony of the memory her own call; testimony communication’s officer who received Jenkins’s concerning her arrival at the Jenkins’s house of Janet Zimmerman call; sheriff and deputy to the 911 and the response concerning they at Detonancour’s home when arrived sheriff events him. question enough presented We conclude that was
¶43 cumulative, Moreover, we evidence on the issue of consent. admissible rape exam evidence conclude that the introduction the inadmissible because, comparison and in qualitatively, was harmless evidence, testimony concerning victim’s specifically, admissible erroneously exam, admitted possibility there is no reasonable might have contributed to Detonancour’s conviction» rape completing on the mechanics of admission of the error, prejudice and it did not Detonancour. exam was harmless Issue its discretion when it allowed Did the District Court abuse advocate, testify rape trauma Amy Cooksey, Jo about victim/witness (RTS)? syndrome testified about RTS and about observations Cooksey she as argues qualified Jenkins’s behavior. she had no formal education. expert an in RTS because an 702, M.R.Evid., qualified “a provides that witness Rule may skill, training, experience, or education expert by knowledge, opinion of an or otherwise.” testify thereto in the form persons subject to stress disorder which post-traumatic RTS is a have may Rogers, 15. We experience. such as ¶ severe trauma *7 testify regarding in RTS to expert as an permitted persons qualified of RTS in a psychological symptoms and presence physical of 15. Rogers, is at issue. ¶ to sexual intercourse victim when consent expert of qualification competency The determination ¶48 showing a judge, the trial and without largely rests with witnesses discretion, will not be disturbed. a determination an such abuse 296, 301, (1993), R. Co. Burlington Northern R. Cottrell affects qualification of a witness’s degree P.2d 384. The Berg testimony. State v. admissibility weight rather than 431, 434, P.2d 1367. (1985), 215 Mont. year and seven months she had one Cooksey testified that
¶49 justice victim witness advocate as criminal position in her experience Dillon Police working for the years experience eight and a half the Dillon Police of her with In course work Department. team and attended rape investigative she worked on Department, she had She estimated that seminars on RTS. trainings numerous victims, specific which was not all of dealing with training 200 hours of to RTS. in abuse its discretion Court did not find that the District training and on RTS. She had Cooksey testify expert as an allowing true, it is Although victims. working in RTS and with
experience out, had no formal education points that she as Detonancour weighing factor jury could consider this psychology, testimony. Cooksey’s testimony that Jenkins’s objects also it told to eight consistent the times was description of the assault was description gave she law consistent with the her and was also improper was an argues He that this enforcement officials. credibility. comment on Jenkins’s timely objection during constitutes “Failure to make 46-20-104(2), This will Section MCA. Court objection.”
waiver of the given has not an in error when it been not hold district court Weeks opportunity to correct itself. State v. trial; therefore, decline objected to at we This was not to address this issue.
Issue 5 instructions, whole, fully fairly jury Did the reviewed as a present jury? the law to the jury final oferror deals with two instructions. point Detonancour’s #1, to, general objects stated: “As a
Instruction rule, which Detonancour and circumstantial the law makes no distinction between direct evidence, jury find the facts in accordance simply requires that but case, both direct and of all the evidence preponderance added.) Detonancour contends that (Emphasis circumstantial.” upon prove the State to instruction constituted a burden reduction He beyond a reasonable doubt. every each and element of offense 1-017 on direct and Jury *8 they fully fairly and if present jury, jury the law to the the has 392, properly Bradley (1995), 395, been instructed. State 269 Mont. 1167, whether, applied P.2d 1168. The test to be is when an part body instructions, instruction is considered as a of the whole the is prejudicial appealing party. instruction State v. 457, Longstreth, 1999 MT 984 P.2d ¶ ¶ ¶ agree jury We with the State that model instruction explaining the difference between direct circumstantial evidence preferable #1 given by the Instruction the trial here. court We conclude, however, divergence that the District Court’s from this instruction not prejudice did Detonancour. Immediately #1, stated, reading after Instruction the court “Now by ‘preponderance.’
don’t be misled that term That doesn’t refer to the doubt, standard of reasonable prove guilt which the State has to or only of a innocence Defendant. It refers to the mass of evidence.” given by Parts 3 & 4 #2 of Instruction the District Court stated that, “3. The has proving guilt state of Montana the burden of beyond beyond defendant reasonable doubt. 4. Proof a reasonable proof convincing doubt is of such a character that a person reasonable rely would and act it in the most upon important of his or her affairs. Beyond beyond any beyond a reasonable doubt does not mean or doubt of a shadow doubt.” addition, In the instructions on the sexual elements of intercourse consent, felony without misdemeanor sexual assault and sexual following language: assault all included the you If your find from consideration of all the that all of proved beyond doubt, these elements have been then reasonable you guilty. should find defendant hand, If you your on other find from consideration of all the beyond proved evidence that these elements have not been you a reasonable then find not guilty. doubt should the defendant whole, We are conclude when the instructions read as jury was instructed on the burden properly proof by was not the use of the prejudiced phrase “preponderance” Instruction #1. jury also contends that should have been only
instructed that the definition of “without consent” should have applied been to the offense of sexual intercourse without consent. was instructed on the elements of the crime of sexual as the elements of misdemeanor intercourse without consent well fact felony complaint sexual assault. Detonancour’s lies given was also an instruction which defined “without applies consent” as it to the crime of sexual intercourse without did apply consent but was not instructed this definition applies consent” meaning of “without ordinary assault. The sexual (1996), 280 Stuart Rocky Mt. Bank v. assault. of sexual the offense (words must be legislature 243, 247 used 74, 80, 928 ordinary meaning). usual and given their limiting give Court’s failure the District find that *9 substantial affect Detonancour’s prejudicially did not instruction charged crime instructed the elements of the on jury The rights. fact, If, jury in included offenses. of the lesser and the elements of sexual to the offense definition consent” applied the “without more actually have been proof burden of would the State’s onerous. is affirmed. The District Court TRIEWEILER GRAY, COTTER and JUSTICES CHIEF JUSTICE
concur. dissents. concurs and specially NELSON JUSTICE 1, 2 and 4.1 of Issues and resolution I concur in our discussion
¶67
dissent from our discussion
Issue,
that
of Issue 5. As to
and resolution
for new trial.
I
and remand
would reverse
underlying
system
our
principles
of the most fundamental
One
¶68
criminal
each
prove
State must
requirement
justice
is the
charged “beyond a
accused is
offense
which the
element of
with
(1970),
See,
397
Winship
In re
legion.
The cases are
doubt.”
reasonable
1072-73,
368; State
1068,
25 L.Ed.2d
358, 363-64,
S.Ct.
U.S.
90
410-11,
1251, 1255-56.
403,
P.2d
(1991),
Croteau
248
812
statutorily requiring
Montana,
fact,
principle,
in
has codified
46-16-
proof-§
meeting
State
in
this burden
where the
fails
acquittal
juries
be instructed
statutorily mandating that
204,
by
MCA-and
beyond a
cases,
must be established
guilt
in criminal
specifically
26-1-403(2), MCA.
reasonable doubt-§
any jury
end,
historically found disfavor
courts have
To that
See,
example,
proof.
burden of
that reduces
state’s
instruction
for
1881,
684,
44 L.Ed.2d
(1975),
95 S.Ct.
421 U.S.
Mullaney v. Wilbur
2450,
510,
61
(1979),
99 S.Ct.
442 U.S.
508;
v. Montana
Sandstrom
526, 530,
(1981), 191 Mont.
v. Lundblade
39. See also State
L.Ed.2d
whole,
(instructions, which,
apprise
fail
545,
P.2d
548
crime
every element of the
prove
has the burden
jury that the state
doubt,
inadequate).
are
beyond reasonable
bar, this Court
in
Indeed,
importance
the case
and of particular
included
have
instructions which
criticized criminal
specifically
has
standard within
of the evidence
preponderance
references to a
451, 461, 71 P.
(1903), 27 Mont.
See State v. Felker
charge
jury.
evidence,”
(an
“preponderance 668,
defining
instruction
instructions,
place
has no
other
in view of the
though not reversible
659, 668, 194
(1920),
P.
58 Mont.
trial);
v. Francis
a criminal
State
(an
may
by a
proven
facts
be
which assumes that
instruction
“preponderance
trial);
of the
has
place
evidence”
no
a criminal
(instruction
Croteau,
instructed the jury that the law makes no distinction between direct evidence, and circumstantial simply requires jury but find the preponderance evidence, facts in accordance with a of all the both That, course, direct and circumstantial. not a correct statement of must, above, the law. The unanimously as noted convinced that necessary prove the facts each element of the charged offense are by evidence, by competent beyond established the state a reasonable doubt. fact that the trial court then told the to be “mislead” indication, more, the preponderance good instruction-a without instruction was incorrect even in the court’s view-and fact
that the court gave also correct reasonable-doubt instruction did not resolve the error. When viewed through proper lens *10 review, standard of these conflicting oral and written instructions “as hopelessly confusing. a whole” were could, I simply agree cannot at one and the same
time, expected entirety to determine the facts the from of the (both circumstantial) “preponderance” and direct standard, proof beyond but still hold the State to its burden of impose juries reasonable doubt. Courts should not on trial the here, necessity engage Inevitably, to such mental as legerdemain. confusing improper deprive rights instructions the accused of his by jury guaranteed II, to a fair trial and trial under Article 24 Sections Therefore, and 26 the of Montana Constitution. I would reverse on the 1 basis of the court’s Instruction No. and remand for new trial. I Similarly, disagree analysis giving with our of the court’s of 45-5-501(1), Instruction No. 11. The definition of “without consent” at § 45-5-503, MCA, statutorily is limited to its use in sexual intercourse § Presumably, legislature without consent. if the had wanted the assault, 45-5-502, to to sexual apply “without consent” definition Haser, MCA, limited definition. See it would not have so the State 6, n.2, 63, n.2, n MT 20 P.3d court, view, my The trial should have instructed that the failing sexual In apply “without consent” definition did not to assault. again to do so the misstated the law to the mislead the court of fact finders as to the elements sexual assault. states, “without “ordinary meaning” the If, opinion our as is) (whatever jury was not to sexual applied
consent” that knew, of sexual crime As far the fact finders so instructed. as that identical was assault included a “without consent” element without consent-a element of sexual intercourse “without consent” even State is incorrect. point of law that concedes minimum, court or define the crime to explain the trial must At a jury. Campbell the 803. It State v. mis-defining great logic leap no to conclude requires egregious elements of the crime-as the court did here-constitutes would, all. I defining an the elements of the crime at error as therefore, on ofthe Instruction No. as well. reverse the basis court’s necessarily disagree I with the Court’s Finally, while do not my analysis 3,1 express dismay Issue still must harmless error in the as to methodology of allowing testimony detailing court’s trial unnecessary wholly rape testimony kit examination. This was lack of own establish the victim’s consent-her unequivocal strongly on and other point evidence at of the substantiated version event. view, my rape testimony concerning In the mechanics of the kit
¶79 examination does little
except passions jury. inflame the While enough, perhaps is even is the fact that this sort bad worse victim, embarrassing who humiliating to has undergo had an procedure intimate and uncomfortable at time mentally emotionally. physically, when she has been violated To require having the victim endure of this mechanics procedure public peers medical/forensic the recounted in a to one’s except community, should not be countenanced under most necessary extreme and of which were issue circumstances-none here. above, I By instructional error discussed would virtue do remand trial. I from failure to so.
reverse and for new dissent our notes Montana Criminal Instruction No. of all the “preponderance does not include the circumstantial evidence phrase. evidence” have that the model instructions would The State concedes District Court’s given argues preferable been to the one but prejudice this instruction did not divergence from emphasized the State’s burden the other instructions because charged beyond a reasonable the elements of the offense proving doubt. whole, cases, reviewed as must be In criminal instructions