Montana v. Deveraux
| Citation | 512 P.3d 1198 |
| Decision Date | 05 July 2022 |
| Docket Number | DA 19-0671 |
| Parties | State of MONTANA, Plaintiff and Appellee, v. Gene DEVERAUX, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Alex R. Nixon, Carbon County Attorney, Red Lodge, Montana
¶1 Gene Deveraux (Deveraux) was convicted by a jury in the Twenty-Second Judicial District Court, Carbon County, of five felony sexual offenses against his former stepdaughter and one count of Sexual Intercourse Without Consent (SIWOC) against his former wife, B.J. He appeals all six convictions based on the District Court's denial of his motion to remove a prospective juror for cause. He alternatively challenges his SIWOC conviction against B.J. on the grounds the District Court gave two erroneous jury instructions.
¶2 We affirm and restate the issues as follows:
¶3 B.J. married Deveraux in March 2008. B.J. had four children when she married Deveraux, and three of them lived with the couple during the marriage, including D.S., who was seven years old when she became Deveraux's stepdaughter. The family enjoyed outdoor activities and maintained a residence in Billings and property in Bridger, Montana, where they spent weekends and worked on constructing a house. In May 2011, B.J. was driving herself, her son, and D.S. home from a concert when a drunk driver collided with their vehicle. B.J. suffered major injuries—a broken pelvis
, a shattered femur, a spinal injury, and severe nerve damage. She underwent multiple surgeries and bone grafts, remaining in the hospital for a month. Upon release, she was completely dependent on others for her daily care. During this time, Deveraux began sexually abusing B.J., which continued until the couple separated in July 2014. In November 2016, D.S. disclosed to her brother and her friend that Deveraux had sexually abused her since before Deveraux married her mother, starting when she was around four years old, and continuing until D.S. was about 13 years old, when B.J. and Deveraux separated. D.S.’s father reported the abuse to the authorities. D.S. was 18 years old at the time of trial.
¶4 Deveraux was charged with: Counts I and II, Incest against D.S., in violation of § 45-5-507, MCA ; Count III, Sexual Assault against D.S., in violation of § 45-5-502, MCA ; Counts IV and V, SIWOC against D.S., in violation of § 45-5-503, MCA ; and Count VI, SIWOC against B.J., in violation of § 45-5-503, MCA. Deveraux pled not guilty to all charges and the matter proceeded to trial.
¶5 Deveraux's jury trial occurred over five days in June 2019. During voir dire, a prospective juror advised the court she had personal family issues she would like to discuss privately. Due to the emotional nature of the charges, the District Court asked Deveraux's counsel to identify similarly situated individuals on the jury panel. Deveraux's counsel addressed the panel: "Who has these sort of -- those deep-seated issues, these incredibly personal relationships with people about rape, about child sexual abuse, that we're talking about here today?" The District Court conducted individual voir dire with five prospective jurors who asked to speak privately about their experiences.
¶6 Prospective juror R.G. disclosed in chambers that his girlfriend had endured a marriage where " ‘no means no’ did not apply in that relationship." He discussed how he believed it was hard to prosecute marital rape cases and how some people unfairly do not recognize it as a crime. R.G. stated, Deveraux's counsel asked, "If you were my client, would you want you on the jury?" R.G. responded, Deveraux's counsel moved to remove R.G. for cause.
¶7 The State questioned R.G.:
Based on R.G.’s responses, the State objected to defense counsel's challenge to remove him for cause.
¶8 The District Court then addressed R.G. directly:
The District Court denied the motion and R.G. remained on the panel. Out of the five prospective jurors individually questioned in chambers, the court dismissed three for cause, retained one upon agreement of the parties, and retained R.G. over defense counsel's objection. Deveraux's counsel exercised all six of his peremptory challenges, but did not use one to remove R.G., and R.G. ultimately sat on the jury.
¶9 B.J. testified in detail about her injuries resulting from the car accident and Deveraux's sexual abuse occurring during her recovery.1 When B.J. returned home from the hospital, she needed continual care. She lay flat on her back on a twin mattress on the living room floor, was in severe pain, and could not move independently or sit up to eat. She testified she was so fragile that if she coughed, someone had to "put a pillow over my hips and we just tried to hold [me] together." B.J. initially had a full-time catheter that required changing and cleaning to prevent infection. Her friend Kathy primarily cared for B.J. at home, and the family received assistance from their church community. However, when Kathy was not available, Deveraux was commonly responsible for B.J.’s care.
¶10 B.J. testified that, after the accident, Deveraux became Deveraux wanted B.J. to file for divorce, but she refused out of fear she would lose the custody of her children to her ex-husband, with whom she was in a difficult custody battle. She could not care for herself or her children, had lost her job, and exhausted her medical insurance. She was completely dependent upon Deveraux, explaining,
¶11 During this time, Deveraux's attitude regarding his sexual relationship with B.J. also dramatically changed. B.J. testified that, before the accident, the couple had a "traditional" sex life, informed by her religious beliefs not to do "anything out of the ordinary stuff." After the accident, "there was no caring ... it was violent, it was unloving." B.J. testified that her first post-accident sexual experience with Deveraux occurred during her first shower after returning home from the hospital. She was still severely injured—she had to be carried into the shower and sat on a plastic chair with arm and leg supports, leaning on an inflatable innertube to keep pressure off her broken pelvis
. "I would hold myself up because I was still broke," B.J. testified. Deveraux got into the tub with B.J., and she expected him to help her shower. Instead, Deveraux shocked B.J. by demanding oral sex. B.J. testified Deveraux "grabbed the back of my neck" and forced her to participate. She did not understand Deveraux barely cleaned her afterward. B.J. testified that Deveraux forced her to have oral sex with him during every shower until she could bathe independently, "and if I didn't want to do that, I didn't get a shower." These showers occurred at Deveraux and B.J.’s residence in Billings, but the forced oral sex continued once they moved permanently to the Bridger property in 2012.
¶12 B.J. next testified about the first time she had vaginal intercourse with Deveraux after the accident—she was still immobile, confined to the bed in the living room, and had just removed the catheter. Deveraux picked her up off the mattress and propped her up on the couch with pillows.
I told him I didn't want to have sex. And I told him it was going to hurt and it was hurting. Keep in mind, [I'm] still all stapled up. And I told him, He said, ... He didn't care, still had to have sex. I'm crying, I'm telling him to...
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State v. Tracy
...79. ¶13 We review jury instructions given by a district court for an abuse of discretion. State v. Deveraux, 2022 MT 130, ¶ 20, 409 Mont. 177, 512 P.3d 1198. We review instructions in criminal cases to determine whether the instructions, as a whole, fully and fairly instruct the jury on the......