*1
STATE OF MONTANA,
Respondent,
Plaintiff v.
STEVEN HENRICH,
Appellant.
Defendant and
No. 93-618.
Submitted on Briefs October
1994.
Decided December
1994.
St.Rep.
For *4 Mazurek, Attorney General, Joseph P. Hon. Respondent: For General, Mike Sal- Schunk, Helena; Attorney George Assistant Gary Balaz, Deputy County Attor- Attorney, County vagni, Gallatin Bozeman. ney,
JUSTICE TRIEWEILER delivered the Opinion of the Court. April 23, 1993, On defendant Steven Henrich was charged by information filed in the District Court for the Eighteenth Judicial County District in Gallatin with endangering the children, welfare of misdemeanor, a in violation of 45-5-622(2)(a)(i), MCA; § sexual inter- consent, course without a felony, in 45-5-503, violation of MCA; § incest, felony, a in 45-5-507, MCA; violation of § two counts of sexual assault, felony, a in 45-5-502, violation of MCA; § and two counts of assault, misdemeanor, in violation of 45-5-201(l)(a), § MCA. On September the State filed an amended information amend- ing one count of misdemeanor assault to felony assault in violation 45-5-201(3), MCA, and adding additional § facts in support of other charges. Following jury trial which was conducted from September 27-29, 1993, Henrich was convicted of six of the seven offenses charged, years sentenced to 22 in the Montana State Prison, and designated dangerous appeals. offender. Henrich We affirm part part. reverse in
The issues on appeal rephrased are as follows: 1. Did the District Court abuse its discretion when it refused to grant Henrich’s motion for a mistrial and motion for a new trial based newspaper on a article about additional charges against Henrich published in the Bozeman day Chronicle the before the case was jury? submitted to the
2. Did the District Court abuse its discretion prejudice and did result when it allowed the portion to listen to a of one of the victim’s recorded during deliberations?
3. Was there sufficient evidence for the to convict Henrich? 4. Did the District Court abuse its discretion when it allowed a testify school counselor to regarding complaint by made one of the victims?
5. Did the District Court err when it concluded that Henrich is a dangerous offender?
6. Did the District Court err it when sentenced Henrich to the Montana State Prison?
FACTUAL BACKGROUND They Steven is married to Patricia Henrich. are the M.H., parents January 22, 1976, born on A.H., born on May daughters 1977. Both parents’ were removed from their home after complained February A.H. 1992 that Henrich had physically and
263 At years. trial, girls sister of the sexually period abused her over five their following history prior the of abuse removal. related in 1987, family that in the lived West Yellow- M.H. testified while the stone, occasionally take her to the woods under Henrich would shooting, they going weapons. that were to shoot Instead of pretext perform her and her sexual acts M.H. said that Henrich fondled had conduct the basis one count physical gratification. his This was for for felony assault. sexual of Yellowstone, they they in
After lived West but before moved Sky at and the Big Henrich worked as a chef lived in Belgrade, living M.H. testified that in the dormi- with M.H. while dormitories tories, sexual her. She testified Henrich had intercourse with also different during time which Henrich had inter- periods about several her at other locations from 1988 to 1992. M.H. testified course with complied acts were a that because that the sexual routine she with grounds charge afraid of Henrich. These acts were the for the she was intercourse without consent. of sexual 1989, eighth in of she was M.H. testified that the fall when in the against she attended a Halloween dance Henrich’s wishes. grade, dance, from the M.H. that Henrich back- returning stated Upon her and her board. This conduct was spanked cribbage handed with of the basis one count misdemeanor assault. 1992, had February speed
M.H. that in her take testified the the methamphetamine prescribed for him. This was basis for charge endangered that he the welfare a child. alleged she also a victim of abuse. She
A.H. was Henrich’s Henrich, occasions, 1991 or on different back- testified stomach, face, her in and threw the her in the kicked the handed her. This was the basis for a tape and electrical at conduct telephone he rubbed count misdemeanor assault. Her second for the second count of sexual vagina crotch and the basis her assault. and abuse were first revealed physical sexual allegations
These school Belgrade the occurrences counselors reported A.H. when re- report, she and were February Following of 1992. A.H.’s M.H. parents’ from their home. moved 28, 27-29,1993. On September from September
This case was tried began deliberations, the Bozeman Chronicle the before merely One about Henrich. article summarized two stories published pimping and “Man faces article shaded entitled trial. A second charges,” charges involved additional filed against Henrich on September 1993. next morning, Judge
The A. Thomas Olson discussed the articles attorneys. with immediately both Henrich’s counsel moved for a publicity. mistrial because of the court The instead questioned each juror individually in chambers to determine if had read the Olson Judge placed paper article. over the title and sat 10 feet jurors juror from the following asked each series of questions: juror 1. Did that subscribe the Bozeman Chronicle? juror 2. Did that see Chronicle the preceding evening? juror Did that see shaded article or the article next to it about the trial? *6 anyone juror
4. Did tell that about the shaded article or call their attention to it? juror
5. Did that the story see television about the trial on Channel previous night? 7 the jurors of the they
None stated that read or heard about details of article; they the nor did state that had or observed heard about result, the the coverage. details of television As a the court allowed again objected. the trial to continue. Henrich’s counsel jury deliberating, they As the a note sent to requesting hear testimony, beginning M.H.’s with a specific question prosecutor the asked M.H. The court sent back the requested note and jury the requested testimony. indicate the extent the of jury After the re- the court sponded, request discussed the with counsel and replayed of the portion testimony for the jury. The continued delib- erating and later returned a verdict that Henrich six guilty the seven counts with which was charged. he The court had dismissed charge following the ofincest Henrich’s motion a directed verdict. Finally, after a sentencing hearing during which the court heard professional counselor, a Henrich, from a psychologist, his wife, others, and the court sentenced Henrich to 22 years prison in designated dangerous and him a offender. Henrich claims numerous errors warrant reversal of his convictions. We affirm in part and part. reverse in
ISSUE 1 Did the District its grant Court abuse discretion when it refused to Henrich’s motion for and a mistrial motion for new trial based on a article newspaper charges against about additional Henrich publish-
265 day the the before case was submitted in the Bozeman Chronicle ed jury? the denial of a standard of review from a district court’s Our convincing there is clear and evidence motion for mistrial is whether (1993), ruling Greytak State v. trial court’s was erroneous. 404, 401, 1096, 1098. 865 P.2d We review a court’s decision 262 Mont. deny to determine whether there is a a motion for new trial Sherrodd, Inc. Geiger abuse of discretion. v. showing of manifest (1993), 1106, 1108. argues 262 Mont. 866 P.2d of the denied a fair trial violation the Sixth Amendment he was II, 4, Article of the Montana Constitu Constitution and Section U.S. The tion, article. article was entitled newspaper because of second Charges,” charges against “Man and discussed filed Pimping Faces 17, September Henrich on prejudicial us conclude that the article was
Henrich would have
se
a new trial. This case does not involve
situation
per
require
pretrial publicity giving
process
and massive
rise
due
of continuous
1628,
(1965),
532,
U.S.
implications, as Estes v. Texas
S.Ct.
Ed.
case is
to our
analogous
previous
14 L.
2d 543. This
more
decisions
during
news
See State v. Kirk
regarding prejudicial
releases
trial.
(1981),
586;
v.
land
State Weaver
Mont.
defendant as a hired killer. The district court denied
decide the case
motion for a mistrial and admonished the
not
presented
on the evidence
to listen to radio
television
based
what action is
newspaper reports.
or read
We discussed
broadcasts
appear
required
prejudicial
of a district court when
news releases
*7
news
during
that we must determine whether the
trial and noted
jurors. Kirkland,
tainted
the
We held that the determination district court’s by publicity is within a prejudiced a fair trial had been Kirkland, (citing at Marshall v. United 594 sound discretion. 1250). 1171, 3 Ed. 2d We (1959), 360 79 S. Ct. L. States U.S. Weaver, claimed In the defendant this notion in Weaver. reaffirmed articles. prejudicial newspaper denied a fair trial because he was the rely only admonished on evidence jury the to The trial court newspaper. We noted court and not to read the in presented individually question not to require Montana does district court 266
jurors regarding publicity, but rather it is within the trial court’s discretion to determine whether newspaper prejudicial. articles are Weaver, P.2d at required 637 28. We a defendant to show lack of due process juror Weaver, partiality. or actual at P.2d 28-29. We that the concluded court’s admonitions were sufficient to any cure possible Weaver, 637 prejudice. P.2d at 29. case, Judge jury the any this Olson admonished not let to other
person trial, them the talk to about and not to read the about case in the or newspapers, listen to radio or television broadcasts about the story trial. the appeared newspaper, After in the Olson Judge indi- vidually questioned jurors the to determine the extent to which they to, were or exposed by, They influenced the article. all denied reading the article or of its knowing Nothing responses contents. their prejudice indicates from the article. To hold otherwise require would jurors they the that the were not truthful responded conclusion when questions. to the have no for such a court’s We basis conclusion. Nor has any. Henrich offered We conclude that the District Court did not by
abuse its discretion the manner in which it determined whether news prejudicial unfavorable stories were Henrich and did not err when it denied Henrich’s motions for a mistrial and for new trial.
ISSUE Did the District Court prejudice abuse its discretion did result when jury it allowed the to listen to a of one the portion victim’s testimony recorded during deliberations?
Our standard of review a district court’s decision to allow jury’s replay testimony or disallow a whether request trial is the district court abused its discretion. State v. Evans P.2d 418. Henrich claims that the District Court by portion committed allowing testimony reversible error of M.H.’s for replayed during be its deliberations. statutorily Montana altered the rule that did common law not testimony allow court of a transcript the trial to reread witness’s or replay recorded deliberations. 46-16- during Section 503(2), MCA, provides: deliberation, if is
After the has retired there dis- if the agreement among jurors jurors as to the cause, any point arising they desire of law in the to be informed on notify keep them who together, shall the officer shall appointed requested may given, be notify then court. The information court, parties. of the after consultation with the discretion *8 emphasis being undue prevent designed rule was The common law evidence in to other given opposed to the as on materials placed applies still in most cases. that this rule recognized have the case. We at 419. Evans, 862 P.2d MCA, difficulty allowing 46-16-503(2), and the
Recognizing § stringent require- imposed has this Court testimony replayed, to be specific forth a faced this issue. We set courts with upon ment district circumstances Harris in State v. for these instruction Evans, at 419-20. it in P.2d and restated 405, 808 Mont. testimony, from the about witness requests with dealing When this instruction: request answer the with courts should any you transcript with a for me to furnish It be error would your verdict, rendering that in for the reason witness particular any undue to the give emphasis not you should Instead, you should all others. the exclusion of one witness to rendering your verdict. as a whole all of the evidence consider you are point reason or However, particular have some you if witness, you evidence of this that relates to the trying to resolve it form, give and I will to me in written may question submit consideration.
Harris,
In by 46-16-503(2), contemplated § limited circumstances jury only basic testimony regarding would be a witness’s example MCA. An object, street, height of an “the width of a factual matters like but not the entire distance, request, some other limited time or Harris, 808 P.2d at testimony of the witness.” testimony was that M.H.’s entire case, Judge Olson ensured In this the extent of the jury regarding not He also consulted replayed. precautions, of these we requesting. spite it In testimony that was give the instruc- by failing District Court erred conclude that the in Harris. tion set forth reversal, it is a basis for error
However,
procedural
before
46-20-701, MCA.
Section
prejudicial.
have been
must be shown
replayed
which
portion of M.H.’s
listening to that
After
by prejudiced
was not
that Henrich
conclude
jury,
for the
we
the Harris instruction.
give
court’s failure
replay
prejudicial
it is
concluded that
previously
We have
where
testimony of
witness
one
emphasize the
testimony if it would
several other witnesses have testified about the same point. Evans,
critical element was whether the defendant
the person
knew
hiding
*9
an
his home was
offender. Several witnesses testified to this crucial
element, including
jury requested
a detective. The
to
part
rehear
of
testimony,
the detective’s
and the court
request.
refused the
We
affirmed the district court
replaying
because
the detective’s testi-
mony on a
of
point
proof
critical
about which several witnesses
would emphasize
testimony
testified
the detective’s
over several
Evans,
others.
The same concern was not in this case. There were not numerous witnesses who testified to the acts with replayed which the testimony of portion only M.H.’s was concerned. The witnesses were M.H. and Henrich. The fact her testimony that had to be balanced against obvious, thus, Henrich’s denial and an instruction to that effect as it was not as critical would be under other circumstances which we have We although considered. conclude that the District a by replaying portion testimony Court erred of M.H.’s without first giving jury, the proper instruction to the the record does not demon- prejudicial. strate that the error was
ISSUE 3 Was there sufficient evidence for the to convict Henrich? The standard of review is whether the evidence viewed in a light most favorable to the State would permit any rational trier of fact that charged to conclude of the crimes proven elements were beyond (1990), reasonable doubt. State v. Cates 241 Mont. 319, argues only 787 P.2d 321. that Henrich evidence supporting testimony by his conviction was A.H. M.H. He and claims that their testimony they is not credible who because are minors made incon statements, sistent of history making accusations, had false had a motive to fabricate their testimony.
Substantial evidence that a is evidence reasonable mind might accept support as sufficient conclusion. State v. Wilson 327, (1981), 318, 1273, 1278. 193 Mont. 631 cases, P.2d sex offense including children, that testimony those involve small the victims’ Gilpin (1988), 70, need not be State 56, corroborated. v. 445, P.2d weight credibility exclusively 453. The of witnesses is jury. province 58, within the of the State v. Mont. Urness 419, 60,
Henrich would have us conclude that A.H.’s and M.H.’s not testimony However, previous credible. authorities are jurors position based on the notion that are in the best draw case, rejected they that conclusion. In this it. reject Furthermore, charge the incest except by for which was dismissed verdict, 1, and Count Henrich did not at the of allege directed time that the was insufficient establish trial the elements Therefore, specific charged. offenses claim was waived for except 1, for Count which purposes appeal, related endanger- 45-5-622(2)(a)(i), of a child in violation of ment MCA. § argues Henrich the evidence is insufficient to establish that guilty endangering he was the welfare of pursuant children 45-5-622(2)(a)(i), by MCA, supplying M.H. with an intoxicating § intoxicating An substance. substance is controlled substance as Chapter Methamphetamine, defined in Title MCA. the alleged M.H., is drug given to a controlled substance as defined § 50-32- 224(3)(c), guilty MCA. The found Henrich of this offense based solely gave on speed M.H.’s her or metham- prescribed that was phetamine him. *10 have recognized necessary
We it is not to have a suspected intoxicating by substance tested the state crime lab a drug substantiate a conviction for related offense. State v. Salois (1988), 276, 1306, 1309. 279, 235 Mont. 766 P.2d Like other elements offense, a proof of criminal that a is an drug intoxicating substance may by be (1970), established circumstantial evidence. State v.Dunn 319, Mont. 472 P.2d Tojustify 155 288. a conviction on based circum dangerous evidence that a is intoxicating stantial substance a or drug substance, however, entirely the facts and circumstances must be guilt any theory. consistent with and inconsistent with other rational (1983), 893, v. Starr 204 664 (citing State Mont. P.2d 896 827). (1966), State v. Stoddard Dunn, In teenage girls the defendant two gave pills alleged to be they The both testified that girls LSD. hallucinated from the drugs. addition, drugs LSD, a doctor an that the expressed opinion In were a of an amphetamine, parent or combination LSD and and a of one girls Dunn, the her of described behavior as she hallucinated. 472 at 296-97. P.2d
However, in this the circumstantial evidence case was not suffi- guilty to establish Henrich of the offense. charged cient M.H.’s unqualified opinion alleged drug is insufficient to establish that the a The State did not introduce bottle of methamphetamine. the 270 analysis the of analysis pills, expert M.H.’s
pills, any testimony shook, awake, that she the Her was wide pills. reaction to the tingled ingestion hair from substance was not and that her testimony, as in Dunn. by other supported support jury’s did not that substantial evidence We conclude gave methamphetamine. Therefore, M.H. that Henrich conclusion children is reversed. endangering the welfare of conviction his supported by were that Henrich’s other convictions We conclude evidence. substantial
ISSUE
it
a school
Court abuse its discretion when
allowed
Did the District
by
a
made
one of the victims?
testify regarding
complaint
counselor to
on the admission of
moved for a mistrial based
Henrich
denial of a motion
We
affirm a district court’s
hearsay evidence.
will
that the district
convincing proof
there is clear and
unless
for mistrial
A not witness as to matter unless evidence is support finding introduced sufficient to that the witness has personal knowledge prove personal of the matter. Evidence to not, knowledge may, but need ofthe testimony. consist witness’ own This rule is to the subject provisions opinion ofRule relating testimony by witnesses. expert years.
Bricco testified that he was a for school counselor seven He specialize did in counseling sexually children, not abused but did providing encounter them general counseling. while He stated that he years saw hundreds of children the two he at counseled Bel- grade. children, Of these Bricco stated about ten percent were sexually abused. He discussed sexual abuse with numerous children. open therefore, How children were was, about sexual abuse a matter of his personal counseling experience. We conclude that Bricco was merely stating a personal observation, and that the District Court did not err it when admitted his testimony.
ISSUE 5 Did the District Court err when it concluded that Henrich is a dangerous offender?
A court required district is to articulate its reasons for its dangerous determination that an is a offender offender and must do more merely statutory than recite the language. State v. Morrison 282, 287-88, argues P.2d 517-18. Henrich that the court erred when dangerous it determined that he was a purposes parole eligibility. Although offender for he cites no case authority, and does not claim the court failed to articulate its reasons, challenges. he asserts several argument
Henrich’s main is that support evidence did not dangerous designate court’s offender determination. The court shall an nondangerous parole eligibility offender as if the purposes determined, court on the presentence report, has based at evidence trial, sentencing hearing, repre- offender “does not society.” sent a danger persons substantial to other Section 46-18- *12 404(1), MCA. If the court determines that the offender is dangerous, that determination shall part be made of the sentence imposed and judgment. 46-18-404(3), shall be stated in the Section MCA. The District Court considered the presentence investigation trial, report, sentencing evidence at and the hearing. Because of the abuse, nature and the duration of the the court found that Henrich danger daughters. was a substantial to his Posing a threat of harm designation to others is sufficient basis for as a dangerous offender. argues Henrich also that we should reverse the District Court’s dangerous designation offender because he not given notice process rights. before trial violation of his due disposed We of a argument (1990), 501, in State v. similar Krantz 241 Mont. 788 P.2d 298, 938, 341, 112 306, cert. denied 498 U.S. 111 S.Ct. L.Ed.2d we stated that notice of the sentencing hearing where itself is suffi potential dangerous cient notice of a offender designation because the sentencing required Krantz, court is to consider the issue. 788 P.2d at 305.
Finally, Henrich asserts that we should reverse the court’s
dangerous
finding
beyond
offender
because there is no proof
a rea
dangerous. Dangerousness
sonable doubt
Henrich is
is not an
charged
of the offenses
proven beyond
element
need not be
Rather,
Legislature
reasonable doubt.
the Montana
has
decided
Krantz,
offender determination is a
dangerous
sentencing factor.
ISSUE 6 Did the District Court err when it sentenced Henrich to the Prison? Montana State
Henrich contends that his
to the
sentence
Montana State
contrary
Imlay (1991),
our
in State v.
Prison was
decision
(1992),___ U.S._,
444,
cert. dismissed
113 S. Ct.
310. In
the defendant’s
sentence for
Imlay,
prison
121 L. Ed. 2d
sexual
suspended
complete
on the condition that he
a sexual
assault was
therapy
The defendant attended sexual
therapy program.
programs
guilt,
prerequisite
completion
to admit his
which was a
but refused
result,
suspended
As a
his
sentence was
program.
treatment
prison.
Imlay,
and the defendant was sentenced to
we held
revoked
right
his
punished
exercising
against
the defendant was
self-incrimination,
protected by
as
Amendment,
Fifth
because he
was sentenced
prison
for refusing to confess to the crime. Imlay,
Henrich’s main challenge stems from a counselor’s presentence sexual evaluation that recommended incarceration because Henrich deny guilt continued to his unlikely. rehabilitation was objected report, to the it claiming rights violated protected by the Fifth Amendment to the Constitution, U.S. as set forth in Imlay.
Imlay prevent professional does not counselor from testifying at *13 that, the sentencing phase opinion, his or her a defendant ought Rather, to be incarcerated. Imlay prevents a sentencing court from incarcerating a defendant for refusing to confess to the crime in order to complete treatment that is a condition of suspended sentence.
At the sentencing hearing held October the court indi- cated it considered characteristics, Henrich’s presentence the inves- tigations, record, criminal conduct, psychological and reports. The District Court decided that prospects Henrich’s of rehabilitation were slim, that the crimes continued over a significant period, time and that Henrich dangerous. The court considered alternatives, other but Henrich was sent to prison punishment for because of severity the of his crimes and the slim prospects rehabilitation, not because he guilt. failed to admit his Therefore, we conclude that the District Court did not err when it sentenced Henrich to the Montana State Prison.
We affirm in part and reverse in part the judgment of the District Court.
CHIEF TURNAGE, JUSTICE HARRISON, JUSTICES HUNT, NELSON and WEBER concur. GRAY,
JUSTICE dissenting. I concur in the opinion Court’s on all except issues issue whether the District Court abused its discretion in allowing jury the to listen to a portion of one of the testimony. victim’s recorded issue, On that agree I with most the analysis, Court’s but dissent from its prejudice conclusion that no result, resulted. As a I disagree with the Court’s resolution of issue 2. portion
The testimony M.H.’s which was replayed for the specific to acts of sexual intercourse and sexual abuse between M.H. alleged and Henrich January have occurred in February and only testimony of 1992. The regarding those acts came from M.H. and Henrich; say, needless to those testimonies were contradictory. credibility regarding the of the Clearly, jury’s the determinations to the weight given respective opposite the to be witnesses and by the State and Henrich were critical versions of events offered factors here. circumstance, given the emotional nature of such a
Under jury, agree I with Court’s testimony replayed to the cannot M.H.’s Under these circum- prejudiced. that Henrich was not conclusion unduly portion empha- of M.H.’s stances, replaying accused, to the testimony of the victim over that of sized the I that the Court abused its the latter. conclude District prejudice of again portion hear M.H.’s allowing discretion here. at issue