State v. Ariegwe

• Citation: 2007 MT 204,338 Mont. 442,167 P.3d 815
• Decision Date: 16 August 2007
• Docket Number: No. 04-620.,04-620.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kingsley ARIEGWE, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

167 P.3d 815

2007 MT 204

338 Mont. 442

STATE of Montana, Plaintiff and Respondent, v. Kingsley ARIEGWE, Defendant and Appellant.

No. 04-620.

Supreme Court of Montana.

Submitted on Briefs February 14, 2007.

Decided August 16, 2007.

For Appellant: William F. Hooks; Attorney at Law, Helena, Montana.

For Respondent: Hon. Mike McGrath, Montana Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Sue Weber, Deputy County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 A jury convicted Kingsley Ariegwe of attempted sexual intercourse without consent and unlawful transactions with children, and the District Court for the Eighth Judicial District, Cascade County, sentenced him to a term of imprisonment in the Montana State Prison. The court also ordered Ariegwe to pay restitution totaling $14,234.66. Ariegwe now appeals from his conviction and sentence. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 The issues on appeal are as follows:

1. Did the District Court err in denying Ariegwe's motion to dismiss for lack of a speedy trial?

2. Did the District Court abuse its discretion in denying Ariegwe's motion for a new trial?

3. Is the District Court's restitution order illegal?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Ariegwe and a 15-year-old girl whom we will refer to as "K.M." met on January 15, 2003, in an Internet chat room devoted to romance in Montana.¹ During the course of their online conversation, K.M. learned that Ariegwe was a 32-year-old male (he was actually 35) living in Great Falls. K.M. informed Ariegwe that she also lived in Great Falls, and she directed him to the online profile associated with her screen name (online pseudonym). The profile contained descriptive information—including K.M.'s age, which was listed as 15—and her picture. The two of them chatted for awhile, and Ariegwe gave K.M. his telephone number.

¶ 4 K.M. called Ariegwe the following evening (January 16) and again the next morning (January 17). In the course of these conversations, Ariegwe mentioned that he was divorced and that he had a 9-year-old son. K.M. informed Ariegwe that his age did not bother her "because [she] wasn't planning on doing anything with him." (K.M. later explained at Ariegwe's trial that because she was homeschooled and worked upwards of thirty hours a week as a babysitter, contact over the Internet was one way for her to make friends.) K.M. and Ariegwe also discussed alcoholic beverages, and K.M. disclosed that she had previously tried rum.

¶ 5 During the conversation on January 17, K.M. and Ariegwe arranged to meet later that morning at a local car dealership, where K.M. would be dropping off her mother's car for servicing. Upon arriving at the dealership, Ariegwe found K.M. in the waiting area. The two talked briefly and then decided to leave. Ariegwe drove K.M. to his house (which he shared with his ex-wife, his son, and his daughter), and upon arriving, they proceeded down to Ariegwe's living quarters in the basement. As for what transpired next, K.M.'s and Ariegwe's stories diverge dramatically.

¶ 6 According to K.M., Ariegwe went upstairs to get some glasses in which to serve them each an alcoholic beverage. Meanwhile, he had given her permission to play Nintendo, but K.M. was not able to get the game to work, so she just sat on the couch and waited. When Ariegwe came back downstairs, he poured K.M. a glass of liquor and she drank it. Ariegwe then sat next to K.M. on the couch and they watched television. After a couple of minutes, Ariegwe began playing with K.M.'s hair and kissing her neck. K.M. told him to stop doing this, but he replied that she should give him a chance to show her that he's good with his tongue. Ariegwe then pulled K.M. onto his lap and, in so doing, bruised her left arm. He continued to kiss her neck and then pulled up her shirt and her bra and began kissing her breasts, notwithstanding K.M.'s insistence that he stop. He also stuck his hands between her legs and started rubbing her, after which he got on his knees on the floor and began biting in between her legs.

¶ 7 K.M. tried to push Ariegwe away. She told him that she wanted to leave, at which point he served her two more glasses of liquor, which she drank, as she later explained, "[b]ecause I was stupid." Thereafter, Ariegwe and K.M. stood up and he hugged her. She thought he was going to take her back to the car dealership, but instead he moved her over to the bed a short distance away where he laid her down, straddled her, removed most of her clothing, and performed oral sex—again, notwithstanding K.M.'s demand that he stop. Ariegwe then attempted several times to penetrate K.M. The first attempt occurred on the bed, but K.M. managed to slide out from underneath him. She fell on the floor, where he persisted to attempt to penetrate her, but K.M. kept sliding out from underneath him. Eventually, K.M. ended up at the bottom of the stairs, where Ariegwe finally penetrated her for about twenty seconds. He apparently pulled away before climaxing, which enabled K.M. to retrieve her clothing and get dressed. Ariegwe asked K.M. if she was okay, to which she replied, "No." He then got dressed and drove her back to the car dealership.

¶ 8 According to Ariegwe, by contrast, he did not have any sexual contact with K.M. Rather, upon arriving at the house, K.M. accompanied Ariegwe down to the basement and they sat down to talk. K.M. stated that she wanted an alcoholic beverage, so Ariegwe retrieved a bottle of liquor from the utility room, set the bottle on top of his entertainment center, and went upstairs to get drinking glasses. When he returned to the basement, he found K.M. sitting on the couch and playing the Nintendo game without his permission. He also observed that she was drinking directly from the bottle of liquor, was becoming "too playful" and "very hyper," and was "touching everything."

¶ 9 Ariegwe put the liquor away and brought K.M. back to the couch to talk and watch television. After about ten or twenty minutes, K.M. indicated that she wanted to leave, at which point the two of them walked over to the stairs. When K.M. took the first step, she staggered and fell backwards, prompting Ariegwe to grab K.M.'s arm to stabilize her. He led her up the stairs and then drove her back to the car dealership.

¶ 10 That afternoon, K.M. telephoned her best friend R.K. Although she did not disclose all of the details, K.M. confided to R.K. that she had had sex with a man in his thirties. Unbeknownst to K.M., this brief conversation was recorded on an answering machine at R.K.'s house. R.K.'s parents heard the conversation and contacted K.M.'s parents, who confronted K.M. the next morning. K.M. acknowledged a sexual encounter and stated that it had been involuntary.

¶ 11 K.M.'s parents contacted the police and took K.M. to the hospital for an examination. The police questioned K.M. at the hospital and then asked her to show them the house where she had been taken the previous morning (i.e., Ariegwe's house). The police later obtained a warrant to search the residence. They seized two shot glasses from the upstairs sink and a bottle of rum, a computer, and bedding from the basement. They also went to K.M.'s home and retrieved the clothing she had worn while at Ariegwe's house. Meanwhile, Ariegwe's ex-wife contacted Ariegwe, who was at work at the time, and told him that the police were investigating his encounter with K.M. Ariegwe turned himself in at the police station later in the day (January 18), believing that he was in trouble only for providing an alcoholic beverage to a minor. The police arrested him and executed a body search warrant (which involves the collection of biological samples, such as blood, saliva, and hair). Ariegwe was then incarcerated for four days before he posted bond securing his release.

¶ 12 On February 7, 2003, the State filed an information charging Ariegwe with Count I, sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (2001), and Count II, unlawful transactions with children, a misdemeanor, in violation of § 45-5-623(1)(c), MCA (2001). Ariegwe pleaded not guilty to these charges on February 20, 2003, and the District Court set trial for May 13, 2003. Five postponements of the trial date ensued. (Each of the postponements is detailed under Issue One, infra.) Then, on December 16, 2003, the State filed an amended information adding an alternative charge under Count I—namely, attempted sexual intercourse without consent, a felony, in violation of §§ 45-4-103 and 45-5-503, MCA (2001)—to which Ariegwe pleaded not guilty on December 18, 2003. Five days later, the District Court vacated the existing January 5, 2004 trial date, since the parties were waiting for test results from the crime lab, and the court set a status hearing for January 22, 2004.

¶ 13 At the status hearing, defense counsel stated that he had received the crime lab reports, and the court and the parties then agreed on a March 1, 2004 trial date. Defense counsel also indicated, however, that he would be filing a motion to dismiss on speedy trial grounds. That motion was filed, as was a response by the State, and the District Court denied the motion following a hearing on February 17, 2004. The case then proceeded to trial on March 1 and concluded on March 3, 2004. On March 4, the jury acquitted Ariegwe of sexual intercourse without consent but convicted him of attempted sexual intercourse without consent and unlawful transactions with children.

¶ 14 On March 24, 2004, Ariegwe filed a motion for a new trial pursuant to § 46-16-702 MCA. He argued that he had been denied a fair trial because the prosecutor, during closing arguments, had inaccurately represented certain scientific evidence adduced at trial and because defense counsel, during trial, had...