State Of Mont. v. Thorp

• Citation: 231 P.3d 1096,356 Mont. 150,2010 MT 92
• Decision Date: 28 April 2010
• Docket Number: No. DA 09-0418.,DA 09-0418.
• Parties: STATE of Montana, Plaintiff and Appellee,v.Lewis Gale THORP, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

356 Mont. 150

231 P.3d 1096

2010 MT 92

STATE of Montana, Plaintiff and Appellee,v.Lewis Gale THORP, Defendant and Appellant.

No. DA 09-0418.

Supreme Court of Montana.

Submitted on Briefs Feb. 10, 2010.

Decided April 28, 2010.

COPYRIGHT MATERIAL OMITTED

For Appellant: Fred Snodgrass and Scott Hagan, Attorneys at Law, Billings, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Wyatt Glade, Custer County Attorney, Miles City, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Lewis Gale Thorp (Thorp) appeals the Judgment of the Sixteenth Judicial District Court, Custer County. We affirm.

¶ 2 We review the following issues on appeal:

¶ 3 Did the State's counsel and a State witness impermissibly vouch for the complaining witness?

¶ 4 Did the District Court properly instruct the jury on the definition of without consent in the context of the sexual intercourse without consent charge?

¶ 5 Did the District Court abuse its discretion by denying Thorp's motion for a new trial?

¶ 6 Did the District Court impose a sentence on Thorp that amounted to cruel and unusual punishment?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 The State of Montana (State) filed an information on January 24, 2008, charging Thorp with sexual intercourse without consent and incest. The State's affidavit alleged that Thorp had raped M.A., his fifteen year old niece, on January 23, 2006.

¶ 8 Dawn Thorp, M.A.'s mother, reported the incident to the Miles City Police Department on December 26, 2007. M.A. told Deputy Dave Power of the Custer County Sheriff's Office that Thorp had taken her to Pirogue Island in the Yellowstone River. M.A. related to Deputy Power that Thorp had a hobby of making dream catchers. Thorp had persuaded M.A. to drive him to Pirogue Island so that he could look for sticks to make the dream catchers.

¶ 9 Thorp and M.A. initially looked for sticks on Pirogue Island. Soon after arriving, however, Thorp pushed M.A. to the ground. He removed her pants and underpants, and forcibly penetrated her vagina with his penis. M.A. ran away after the incident and hid from Thorp for an unknown amount of time. M.A. eventually returned to the car where Thorp was waiting for a ride back to his house.

¶ 10 Dawn Thorp applied for an order of protection against Thorp immediately after M.A. had revealed to Deputy Power what had happened on Pirogue Island. Dawn contacted Deputy Power again a few days later after she had received a phone call from her brother Dean Thorp. Dean told Dawn that he had received text messages from Thorp regarding the incident with M.A. Deputy Power contacted Dean and viewed the text messages on Dean's phone. Deputy Power obtained numerous text messages sent by Thorp. The text messages contained admissions regarding Thorp having had sexual contact with M.A.

¶ 11 The State admitted the text messages between Dean and Thorp as exhibits during trial. Thorp had texted statements to Dean such as “she initiated everything that ever happened. The only thing I am guilty of is not stopping her. Bad judgment.” Dean responded to Thorp in one message, asking “who was the adult?” Thorp responded, “all right. Then I'm guilty. Well, then I guess there is only one thing left to do and that is time.”

¶ 12 Sara Hucking (Hucking), M.A.'s close friend, testified at trial. Hucking testified that M.A. did not tell anyone about the incident because she worried that her family would not believe her. Hucking testified that M.A. had become withdrawn and quiet after the attack. Hucking was certain something had happened to M.A. Hucking pressed M.A. until M.A. confided that Thorp had raped her. Hucking testified, however, that the rape had occurred at Dawn's house during the summer of 2006, just two or three days before M.A. had confided in Hucking.

¶ 13 Hucking testified further that she kept M.A.'s secret until December 2007, when she decided to tell Mary Battin (Battin). Battin was a long-time friend of Dawn Thorp. Battin asked Hucking about M.A.'s odd behavior. Hucking told Battin that Thorp had raped M.A Battin, in turn, informed Dawn that she needed to talk to M.A. because Thorp had done something to M.A. M.A. told Dawn of the attack. Dawn immediately took M.A. to report the incident to law enforcement.

¶ 14 Deputy Power testified regarding his interview of M.A. and his subsequent investigation. The State asked Deputy Power “what was your reaction to hearing this news [the alleged rape] from M.A.?” Deputy Power responded, “my reaction?” The State proceeded, “your reaction as an investigator?” Deputy Power then answered, “it seemed credible.”

¶ 15 Thorp's trial counsel did not object or move to strike Deputy Power's answer. Thorp's trial counsel later told the court outside the presence of the jury that he believed Deputy Power's testimony had amounted to vouching for the credibility of M.A. Thorp's counsel claimed that he had made a strategic decision not to object to Deputy Power's statement because he had not wanted to “draw attention to it.”

¶ 16 Nineteen year-old Jordana England also testified at trial. Jordana had been engaged to Thorp at the time that law enforcement had served Thorp with the order of protection. Jordana had met Thorp through her mother, Barbara. Jordana and Thorp were living with Barbara in North Dakota. Thorp and Barbara previously had been in a relationship together. Jordana testified that Thorp had told Jordana and Barbara that the order of protection might have resulted from an encounter with M.A. in 2006 in which M.A. had initiated a “blow job” and he had failed to stop it. Barbara also testified that she had heard Thorp admit to this alleged incident with M.A.

¶ 17 Jordana broke off her engagement to Thorp after the State charged Thorp with sexual intercourse without consent and incest. Barbara then resumed her relationship with Thorp. In fact, Barbara visited Thorp in jail and helped him attempt to obstruct the investigation. Barbara retrieved Thorp's cell phone and deleted text messages between Thorp and his brother Dean. The State managed to retrieve the text messages and a photo of M.A. on Thorp's phone that Barbara had deleted. Barbara also testified that Thorp had requested that Barbara ask T.C., a fourteen year old boy, to leave a threatening note on M.A.'s car. T.C. testified that he had written the note as a favor to Barbara, but he did not know who had placed it on M.A.'s car. The note stated “come forward with the truth or your family will be sued for everything that your family has. That means drop this lie.” M.A. testified that she had been frightened when she found this note.

¶ 18 The State's counsel noted to the jury during closing argument that M.A. was 15 years old at the time of the attack and thus was unable to consent. The State's counsel further highlighted his belief that M.A.'s testimony contained all of the elements necessary to convict Thorp of sexual intercourse without consent. The State's counsel suggested that the only question remaining for the jury was “whether you believe her.” The State's counsel urged the jury to believe M.A.: “I think you will find that M.A. is a very credible witness.... She has no reason to lie, and I think you will believe her. I think you should.” The State offered similar statements during the rest of its closing argument.

¶ 19 Thorp's counsel waited until the conclusion of the State's closing argument before raising an objection. Thorp argued that the State impermissibly had vouched for M.A. Thorp asked for a cautionary instruction for the jury rather than requesting a mistrial. The District Court read the jury a cautionary instruction regarding the State's alleged vouching for M.A.'s credibility. The instruction advised the jury that it is impermissible for a lawyer to vouch for a witness, and if the jurors believe the State indeed had vouched for M.A.'s credibility, they were to “discard those comments.”

¶ 20 Thorp later objected to the State's proposed jury instruction that defined “without consent” for sexual intercourse without consent. The State offered a definition of “without consent” that read “the victim is incapable of consent because she is less than 16 years old.” Thorp argued that all of the allegations in the information, and the evidence presented by the State during trial, claimed that Thorp's forcible rape had rendered M.A. incapable of consenting. The court accepted the State's instruction defining “without consent” based upon age.

¶ 21 The jury convicted Thorp of one count of sexual intercourse without consent. The District Court sentenced Thorp to life in the Montana State Prison without the possibility of parole. Thorp filed a motion for a new trial under § 46-16-702, MCA. Thorp argued that the State's alleged vouching for M.A.'s credibility, the court's use of the State's age instruction for “without consent,” and improperly admitted other acts evidence warranted a new trial. The District Court denied Thorp's motion. Thorp appeals.

DISCUSSION

¶ 22 Did the State's counsel and a State witness impermissibly vouch for the complaining witness?

¶ 23 We review for abuse of discretion a district court's rulings on the admissibility of evidence. State v. Hayden, 2008 MT 274, ¶ 16, 345 Mont. 252, 190 P.3d 1091. We generally will not review issues not raised before the district court. We may undertake review of such an issue, however, under the plain error doctrine. Hayden, ¶ 17. This Court invokes plain error review sparingly. We apply plain error review only in situations that implicate a defendant's fundamental constitutional rights when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. Hayden, ¶ 17.

¶ 24 This Court consistently has held that the determination of the credibility of...