State v. Awbery

• Decision Date: 01 March 2016
• Docket Number: No. DA 14–0255.,DA 14–0255.
• Citation: 382 Mont. 334,2016 MT 48,367 P.3d 346
• Parties: STATE of Montana, Plaintiff and Appellee, v. Christopher Michael AWBERY, Defendant and Appellant.
• Court: Montana Supreme Court

382 Mont. 334

367 P.3d 346

2016 MT 48

STATE of Montana, Plaintiff and Appellee,

v.Christopher Michael AWBERY, Defendant and Appellant.

No. DA 14–0255.

Supreme Court of Montana.

Submitted on Briefs Dec. 16, 2015.

Decided March 1, 2016.

For Appellant: Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Thomas P. Meissner, Fergus County Attorney, Jean A. Adams, Deputy County Attorney, Lewistown, Montana.

Chief Justice MIKE McGRATH

delivered the Opinion of the Court.

¶ 1 Christopher Michael Awbery appeals from his October 2013 conviction on six felony charges in the Montana Tenth Judicial District Court. We affirm.

¶ 2 We restate the issues on appeal as follows:

Issue One: Did the District Court properly exclude evidence that some of the victims suffered prior sexual abuse by others?

Issue Two: Is Awbery entitled to a new trial based upon prosecutorial misconduct?

Issue Three: Is Awbery entitled to a new trial based upon the cumulative effect of the alleged errors?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The State charged Awbery with two counts of incest against his daughter A.A. when she was age 12 or younger; with sexual assault and sexual intercourse without consent against A.A.'s half-sister J.G. when she was age 16 or younger; with sexual intercourse without consent against I.A. when she was age 12 or younger; and with sexual assault against N.H. when she was age 16 or younger. All of the charges and the convictions were felonies.

¶ 4 Each of the victims testified at trial, describing how they were sexually abused by Awbery. His daughter A.A. testified that she awoke with Awbery on top of her, and that he dragged her by her hair to another room and raped her. She described other incidents of rape; of Awbery penetrating her with a vibrator; and of Awbery touching her vaginal area with his fingers in a "game" that he called "check the oil." She testified that Awbery threatened to hurt people close to her if she told anyone what he had done.

¶ 5 A.A.'s half-sister J.G. testified that Awbery repeatedly touched her vaginal area with his fingers and for a period of time raped her almost every day. Awbery similarly threatened J.G. that if she told anyone what he had done he would kill her mother. A.A.'s friend I.A. testified that Awbery also played "check the oil" with her; that he raped her on more than one occasion; and that he used a vibrator on her vaginal area. N.H., another friend of A.A., testified that Awbery touched her inappropriately on several occasions, and that she observed Awbery take other girls into rooms after which she would hear a scream and see the girl run out with her pants down.

¶ 6 The State presented the testimony of three expert witnesses. Dr. Wendy Dutton did not testify about the victims, the assaults against the victims, or whether the assaults had happened. Rather, she described the processes used by perpetrators of child abuse and the typical behaviors exhibited by girls who have been abused. Clinical counselor Michelle Feller testified about counseling she provided to A.A., J.G., and N.H. She had been a counselor for A.A. and J.G. since before the assaults by Awbery. She first diagnosed them with Post Traumatic Stress Disorder

in March 2013, after the assaults by Awbery, and testified that they did not have the symptoms necessary to make a PTSD diagnosis prior to that time. Feller testified that N.H. had less severe symptoms, and diagnosed her with acute stress disorder. Feller described the general symptoms exhibited by victims of child sexual abuse and that she had seen those symptoms in A.A., J.G. and N.H. The State also presented the testimony of Morgan Mitchell, a therapist who provided counseling to I.A. She also described symptoms typically exhibited by child sexual abuse victims, and testified that she had observed them in I.A.

¶ 7 The District Court instructed the jury that the testimony of the experts "cannot be used to show that a crime here was committed or that the defendant committed it; nor can it be considered as an opinion by them that the alleged victims are telling the truth."

¶ 8 Awbery testified in his own defense, denying that he committed any of the acts described by the victims. The jury convicted him on all counts.

¶ 9 In March 2014 the District Court sentenced Awbery to terms in prison.

STANDARD OF REVIEW

¶ 10 We review a district court's rulings on the admission of evidence to determine whether there was an abuse of discretion. Beehler v. Eastern Radiological Assoc., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131

. We review a district court's application of a statute to determine whether it was correct. Beehler, ¶ 17.

DISCUSSION

¶ 11 Issue One: Did the District Court properly exclude evidence that some of the victims suffered prior sexual abuse by others?

¶ 12 Prior to trial the State moved that the defense be precluded from introducing evidence that A.A., J.G. and N.H. had each been sexually assaulted by others prior to Awbery's offenses. The State relied upon the exclusions of the Rape Shield Law, § 45–5–511, MCA

. The apparent perpetrator against A.A. and J.G. was a man named Thompson who was convicted of sexual offenses as a result. The alleged perpetrator against N.H. was a man named Gallagher. That incident was not fully investigated because of the wishes of the victims' parents, and no charges were ever filed.

¶ 13 The defense argued that Awbery's constitutional right to present a defense was implicated and that it overcame the exclusions of the Rape Shield Law. According to the defense, the prior assaults increased the chance that the victims suffered PTSD as a result, and increased the chance that the allegations against Awbery were erroneous because the victims suffered from PTSD. Further, the defense stated that it did not intend to ask the girls themselves about the incidents, but predicted that the testimony of "perhaps family members, counselors, or Ms. Dutton might make [the prior incidents] relevant."

¶ 14 After hearing argument of counsel, the District Court refused to exclude the prior assault evidence outright, but warned that if it were admitted it would have to be "very, very relevant" and limited. The District Court stated that the prior "incidents are generally covered by the rape shield law and not admissible unless testimony or an exception makes it so." (Emphasis added.) The defense subsequently argued that Dutton's general background testimony established that PTSD could be a cause for subsequent erroneous allegations of sexual assault and that the PTSD diagnosed in some of Awbery's victims could come from the prior assaults.

¶ 15 The District Court ultimately excluded the defense from presenting evidence of the prior assaults against three of the victims because it would cause undue prejudice and would confuse and distract the jury. The District Court further noted that the record reflected that Feller's PTSD diagnosis was specific to the time of Awbery's offenses and that she testified that the PTSD did not exist as a diagnosable condition before Awbery's offenses. In addition, the District Court noted that there was no evidence that there was any similarity between the prior incidents and Awbery's offenses and that the jury could be confused and distracted by hearing about other incidents.

¶ 16 The Montana Rape Shield Law provides:

Evidence concerning the sexual conduct of the victim is inadmissible in prosecutions under this part except evidence of the victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy or disease that is at issue in the prosecution.

Section 45–5–511(2), MCA

.

¶ 17 In 1975, Montana joined most other states by adopting a rape shield law. See Ch. 129, L. 1975. Under the Rape Shield Law, "evidence concerning the sexual conduct of the victim" is inadmissible in a criminal prosecution, with very limited exceptions not at issue here. Section 45–5–511(2), MCA

. Montana's Rape Shield Law is designed to prevent the trial of the charge against the defendant from becoming a trial of the victim's prior sexual conduct. State v. Higley, 190 Mont. 412, 422, 621 P.2d 1043, 1050–51 (1980). Rape shield laws generally protect victims from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior. Michigan v. Lucas, 500 U.S. 145, 146, 111 S.Ct. 1743, 1745, 114 L.Ed.2d 205 (1991) ; State v. Anderson, 211 Mont. 272, 283, 686 P.2d 193, 199 (1984). They evolved from society's recognition that a rape victim's prior sexual history is irrelevant to issues of consent or the victim's propensity for truthfulness. Tanya Bagne Marcketti, Rape Shield Laws: Do They Shield the Children ?, 78 Iowa L. Rev. 751, 754–55 (1993). The statute reflects a compelling state interest in keeping a rape trial from becoming a trial of the victim. Anderson, 211 Mont. at 283, 686 P.2d at 199.

¶ 18 Although rape shield legislation originally focused on adult rape victims, most jurisdictions also include child victims of sexual abuse within the protections of their rape shield statutes. In 1985 the Montana Legislature broadened the applicability of the Rape Shield Law to include cases involving all types of sexual abuse. See Sec., 3, Ch. 172, L. 1985. The policies underlying the application of rape shield statutes to adult victims apply to child victims as well: rape shield statutes eliminate the need for victims to defend incidents in their past and minimize the trauma of testifying. Marcketti at 756.

¶ 19 Conflict can arise between rape shield statutes and a defendant's Sixth Amendment rights to confront his accuser and to present evidence at trial in defense of the charge against him. A defendant charged with a crime has a right, arising from the Sixth Amendment to the United States Constitution and Article II, Section 24 of...