469 P.3d 122 (Mont. 2020), DA 18-0388, State v. Dineen

Docket NºDA 18-0388
Citation469 P.3d 122, 2020 MT 193
Opinion JudgeBeth Baker, Justice
Party NameSTATE of Montana, Plaintiff and Appellee, v. Dustin Scott DINEEN, Defendant and Appellant
AttorneyFor Appellant: Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana. For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Brett Linneweber, Deputy C...
Judge PanelWe Concur: MIKE McGRATH, C.J., JIM RICE, J. Justice James Jeremiah Shea specially concurring. Justice Ingrid Gustafson dissenting. Justices Dirk Sandefur and Laurie McKinnon join in the dissenting Opinion of Justice Gustafson.
Case DateAugust 04, 2020
CourtSupreme Court of Montana

Page 122

469 P.3d 122 (Mont. 2020)

2020 MT 193

STATE of Montana, Plaintiff and Appellee,

v.

Dustin Scott DINEEN, Defendant and Appellant

DA 18-0388

Supreme Court of Montana

August 4, 2020

Submitted on Briefs: May 20, 2020.

Page 123

[Copyrighted Material Omitted]

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APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 17-0973 Honorable Mary Jane Knisely, Presiding Judge.

For Appellant: Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Brett Linneweber, Deputy County Attorney, Billings, Montana.

OPINION

Beth Baker, Justice

[¶ 1] A Yellowstone County jury convicted Dustin Scott Dineen of felony strangulation of his girlfriend, Jena Curtiss. Jena testified at trial, contrary to her earlier statements to numerous others, that Dineen had not attempted to suffocate her. Dineen acknowledged the "overwhelming" evidence that he assaulted Jena by putting his hand over her mouth but argued that he did not cover her nose or purposely or knowingly impede her normal breathing. The jury rejected Dineen's urging to convict him of the lesser offense of Partner or Family Member Assault.

[¶ 2] Dineen appeals, claiming the evidence is insufficient to sustain his conviction because it rests solely on Jena's uncorroborated prior inconsistent statements. Dineen claims further that his counsel was ineffective by opening the door to evidence of Dineen's prior violence. Finally, he urges the Court to find plain error in the District Court's instruction on the mental state for strangulation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 3] Dineen and Jena were at home together the night of August 14, 2017. Their one-year-old daughter was with Dineen's mother. Jena's other two children were in Forsyth to visit their paternal grandparents. Jena and Dineen got into a heated argument when Jena's mother Alecia— who also lives in Forsyth — called Jena to tell her that the two children were with her. Alecia told Jena that she intended to file a report the next morning with the Child and Family Services (CFS) Division of the Montana Department of Public Health and Human Services (DPHHS). Jena testified at trial that this news upset both her and Dineen, and they began arguing. Dineen put his hand over her mouth to stop her from yelling. Jena was laying on the bed and rolled over on her stomach. Jena testified that, as she slid down to get away, Dineen's hand covered both her

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nose and mouth, cutting off her ability to breathe "for the short minute" that she moved away. She clarified on cross-examination that "it felt like forever, but probably [was] like [a] minute, if that." Jena testified that she left the house, realized she did not have her phone, went back in to retrieve it, then left again and called her mother because she needed a place to go. Jena's sister Priscilla picked her up at a nearby Walgreen's and brought her to Priscilla's home, where Jena would remain for the next month. Alecia was there when they arrived, and Jena told them both what had happened. Jena testified that she was "drained" and "a little sore" from the altercation with Dineen, but that she had not feared for her life. Jena acknowledged that she had called 9-1-1 about an hour after getting to her sister's house and explained that she had done so because Alecia said she would take the kids to CPS if Jena did not.

[¶ 4] On cross-examination, Jena confirmed that Dineen had at some point put his hand over her mouth when he assaulted her that night but said she was not afraid of him. She testified that they were co-parenting their daughter under an arrangement she felt was the best for all of them, with Dineen having primary custody. Jena clarified that the fight with Dineen had upset her, and she left the house "just to alleviate the situation and try to get things calmed down[.]" Jena "[a]bsolutely" denied that she was offering false testimony out of "hope for a romantic relationship" with Dineen. She denied further that she was testifying out of fear of Dineen. The following exchange then occurred: Q. During the five years that you were together, was physical fighting something that occurred regularly or is this an exception?

A. This is an exception, I mean every relationship has their arguing and stuff, but it was never like that until this time.

[¶ 5] The State called Alecia and Priscilla to testify to their recollections of the night of the incident, and both gave a starkly different account. Jena, "frantic" and "hysterical," had called her mother to come get her. When Priscilla picked her up, Jena— frantic and breathing heavily— exclaimed, "He's going to get in the car, he's going to follow me, he's tried to kill me, he's tried to kill me. I couldn't breathe, I couldn't breathe." Both Alecia and Priscilla described Jena's explicit fear that she was "going to die" because she "could not breathe." Alecia had "never" seen her daughter that scared. Jena told Alecia and Priscilla that Dineen pushed her face into the mattress, held one hand over her nose and mouth, and put pressure on the back of her neck so she "couldn't breathe." Jena told her mother, "I've never been close to death before, I don't know how I got out."

[¶ 6] The State called two additional witnesses, CFS employee Jennifer Barcus and Billings Police Officer Jayden Romero. Barcus had seen Jena two days after the assault. Jena told Barcus that Dineen grabbed her and used one hand to cover her mouth and nose. Jena said "she felt Dustin was trying to kill her by attempting to suffocate her. Dustin allegedly threw Jena on the bed, face first, forced his knee on the back of her neck and shoved his open hand to cover her mouth and nose again." Contrary to Jena's testimony on cross-examination, Barcus said that Jena had told her there was "[a] lot of domestic violence, physical aggression in the relationship, and then also Dustin Dineen displaying mean behaviors toward her" as recently as eight months before the August assault. Officer Romero, who responded to the 9-1-1 call, also testified that Jena described Dineen forcefully holding her down and covering her nose and mouth. He described Jena's injuries, including bruises, a swollen lip, and her raspy voice. Both Barcus and Officer Romero testified that Jena told them she had to fight to get Dineen off of her and that she fled the home.

[¶ 7] Dineen rested without calling witnesses. The District Court denied his oral motion to dismiss for insufficient evidence. The jury found Dineen guilty of strangulation.

STANDARD OF REVIEW

[¶ 8] Whether evidence is sufficient to sustain a conviction presents a question of law that we review de novo. State v. Laird, 2019 MT 198, ¶42, 397 Mont. 29, 447 P.3d 416. We also review de novo a claim of

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ineffective assistance of counsel, a mixed question of law and fact. Garding v. State, 2020 MT 163, ¶12, 400 Mont. 296, 466 P.3d 501 (citations omitted). We have discretion to review an unpreserved claim for plain error and do so sparingly when a defendant's fundamental constitutional rights are implicated and the error calls the fairness of the proceedings into question. State v. Lackman, 2017 MT 127, ¶9, 387 Mont. 459, 395 P.3d 477 (citing State v. Godfrey, 2004 MT 197, ¶22, 322 Mont. 254, 95 P.3d 166).

DISCUSSION

[¶ 9] 1. Did the trial evidence support Dineen's conviction of felony strangulation?

[¶ 10] "A motion to dismiss for insufficient evidence is appropriate only if, viewing the evidence in the light most favorable to the prosecution, there is not sufficient evidence upon which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt." State v. McAlister, 2016 MT 14, ¶6, 382 Mont. 129, 365 P.3d 1062 (citing State v. Rosling, 2008 MT 62, ¶35, 342 Mont. 1, 180 P.3d 1102; § 46-16-403, MCA). Section 45-5-215(1), MCA, provides, A person commits the offense of strangulation of a partner or family member if the person purposely or knowingly impedes the normal breathing or circulation of the blood of a partner or family member by:

(a) applying pressure on the throat or neck of the partner or family member; or

(b) blocking air flow to the nose and mouth of the partner or family member.

[¶ 11] Dineen argues, as he did before the trial court, that the only evidence of strangulation came from Jena's prior inconsistent statements, which cannot alone sustain his conviction. Though he acknowledged placing his hand over Jena's mouth, Dineen maintains that the prior statements provided the only evidence that he covered her nose. Without those, the State had no other evidence that he purposely or knowingly impeded her breathing.

[¶ 12] "Prior inconsistent statements may be admitted as substantive evidence and may be considered in 'determining whether the evidence is sufficient to sustain the conviction.'" City of Helena v. Strobel, 2017 MT 55, ¶11, 387 Mont. 17, 390 P.3d 921 (quoting State v. Torres, 2013 MT 101, ¶27, 369 Mont. 516, 299 P.3d 804). But prior inconsistent statements are insufficient, standing alone, to prove a necessary element of a criminal offense and must be corroborated by other evidence. Strobel, ¶11. "'Corroborative evidence' is additional evidence of a different character to the same point." Section 26-1-102(3), MCA. Corroborative evidence may be circumstantial. Strobel, ¶18. "Circumstantial evidence is evidence 'which tends to establish a fact by proving another and which, though true, does not of itself conclusively...

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