State v. Bauer, No. 01-079.

• Docket Nº: No. 01-079.
• Citation: 39 P.3d 689, 308 Mont. 99, 2002 MT 7
• Case Date: January 15, 2002
• Court: United States State Supreme Court of Montana

39 P.3d 689
2002 MT 7
308 Mont. 99

STATE of Montana, Plaintiff and Respondent,
v.
Chester BAUER, Defendant and Appellant

No. 01-079.

Supreme Court of Montana.

Submitted on Briefs June 21, 2001.

Decided January 15, 2002.

39 P.3d 691

Michelle Sievers and Wade J. Dahood, Knight, Dahood, McLean & Everett, Anaconda, MT, for Appellant

Honorable Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, MT, Michael B. Grayson, County Attorney; Joan S. Borneman, Deputy County Attorney, Anaconda, MT, Mark Murphy, Assistant Attorney General and Special Deputy County Attorney, Helena, MT, for Respondent.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 On appeal, Chester Bauer challenges the evidentiary basis of a jury conviction of incest in the Third Judicial District Court, Deer Lodge County, Montana. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court err by denying a motion for a directed verdict of acquittal on the basis of insufficiency of evidence?

¶ 4 2. Did the District Court abuse its discretion by denying Bauer's motion for a mistrial for the erroneous admission of "other crimes" evidence?

¶ 5 3. Did the District Court abuse its discretion by denying Bauer's request to admit the state crime lab's DNA report as exculpatory evidence?

¶ 6 4. Did the District Court abuse its discretion by declining to give a jury instruction on weak and less satisfactory evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 In 1983, Chester Bauer (Bauer) was sentenced to the Montana State Prison for aggravated assault and sexual intercourse without consent. On September 22, 1997, both convictions were vacated on the basis of DNA test results that excluded Bauer as the assailant and other "newly discovered evidence" of actual innocence. However, Bauer remained incarcerated for another two years under sentences for convictions he gained while in prison. In 1991, Bauer pleaded guilty to the charge of intimidating a prison employee's spouse, and, in 1996, he was convicted of sexual intercourse without consent with a 19-year-old female inmate at the Blaine County Jail, where Bauer had been assigned for his protection after serving as a State's witness at the trials subsequent to the 1991 prison riot. Bauer was released on probation in November 1999, and took up residence with his mother in Townsend.

¶ 8 Amanda Bauer (Amanda) is Bauer's daughter and was two years old when Bauer was sent to prison in 1983. She did not see Bauer again until she visited the prison with her grandmother in October 1999, three weeks prior to Bauer's release. Amanda is mildly developmentally disabled and attended special education classes since grade school. Amanda graduated from high school in May 1999. Both Amanda and her sister, Nicole, suffer from Frederick's Ataxia. This progressively debilitating physical disorder and scoliosis of the lower spine affect Amanda's coordination and balance, necessitating that she often use a wheelchair. Amanda's speech and ability to write have also deteriorated, and her life expectancy is greatly reduced. Due to Amanda's mental and physical disabilities, she receives Social Security Insurance benefits, which enable her to live independently.

39 P.3d 692

¶ 9 Bauer arranged to visit his extended family for the 1999 Christmas holiday in Anaconda, where his two sisters live with their families and his father was visiting. In addition, Bauer's ex-wife, Amanda's mother, resides in Anaconda with her husband, children and Amanda's younger sister, Nicole. According to Bauer's probationary travel permit, he planned to stay in Anaconda with his sister, Janet Ricketts. Instead, Bauer spent Christmas Eve with his 18-year-old daughter Amanda in her apartment

¶ 10 According to Amanda's testimony, Bauer had non-consensual sex with Amanda two times during the evening of December 24, 1999. Afterward, Bauer told Amanda that the family would ostracize her and he would be returned to prison if she told anyone what had happened. The next day, Amanda's mother noticed that Amanda was unusually withdrawn during the holiday festivities, ignored her Christmas presents and appeared angry and upset. Amanda told no one of the alleged incest during the subsequent weeks.

¶ 11 Bauer returned to Anaconda on January 21, 2000. He again stated on his travel permit that he planned to stay with his sister. This time, however, Janet knew nothing of Bauer's visit. According to Amanda's testimony, Bauer arrived at her apartment in the late afternoon with a case of beer, travel bag and television set. Amanda testified Bauer touched her sexually, poured beer down her clothes and coerced her to drink alcohol and take pills. In anticipation of Bauer's visit, Amanda arranged for a number of friends to come by her apartment and check on her that evening. Bauer refused to let anyone in the apartment and posted a note on the door stating that Amanda wanted no visitors. As an excuse to get Bauer out of her apartment, Amanda asked him to buy her a cappuccino at a convenience store located on the edge of town. Once alone, Amanda immediately telephoned her mother, who directed her to call the police.

¶ 12 Two officers from the Anaconda-Deer Lodge Police Department arrived at the scene before Bauer returned in his vehicle with the coffees. The officers testified that Amanda was highly distraught and wanted them to make her father leave. Amanda said nothing about any inappropriate touching at this time. The police discovered Bauer was on probation and presumed correctly that he was prohibited from consuming alcohol as a condition of release. Although Bauer denied drinking, the officers administered a field sobriety test, which Bauer failed. One officer took Bauer to the station, where a breath test showed a .07 alcohol level, which is below the presumptive level of impairment. The police did not charge Bauer with driving under the influence and released him to his mother, who accompanied Bauer back to Townsend that night.

¶ 13 Three days later, Bauer sent letters to Amanda and Amanda's mother in which Bauer accused Amanda of drug abuse, threatened to sever all contact between Amanda and Bauer's extended family, discussed suicide, and blamed Amanda for his decision to withhold the birthday gifts he promised to Amanda and Nicole. Bauer wrote that he learned compassion and caring during his 17 years in prison and urged Amanda's mother to encourage Amanda to visit him in Townsend. Several days afterward, Amanda disclosed the incest to her mother and to law enforcement authorities. The ensuing investigation led to a charge against Bauer on April 19, 2000, on one count of incest under § 45-5-507(1), MCA. The information was later amended to include the offenses of January 21, 2000, consisting of a second count of incest and one count of unlawful transactions with children under § 45-5-623, MCA.

¶ 14 At the conclusion of a three-day trial, the jury convicted Chester Bauer of one count of incest with Amanda for the 1999 Christmas Eve incident, and found him not guilty on the two other counts. The District Court denied Bauer's motion for a directed verdict or, in the alternative, a new trial. The court sentenced Bauer to life imprisonment, with an additional 20 years as a persistent felony offender, and declared Bauer ineligible for parole due to his criminal history and predatory sexual behavior.

39 P.3d 693

ISSUE 1

Did the District Court err by denying a motion for a directed verdict of acquittal on the basis of insufficiency of evidence?

¶ 15 We review the sufficiency of evidence to support a jury verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont. 472, ¶ 7, 2 P.3d 242, ¶ 7; State v. Olson (1997), 286 Mont. 364, 371, 951 P.2d 571, 575-76. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. State v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141. The credibility of witnesses and the weight to be given to their testimony are determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Olson, 286 Mont. at 371, 951 P.2d at 576 (citing State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686). If evidence conflicts, it is within the province of the trier of fact to determine which will prevail. Olson, 286 Mont. at 371, 951 P.2d at 576. This Court has held repeatedly that a conviction for a sex offense may be based entirely on the uncorroborated testimony of the victim. Olson, 286 Mont. at 372, 951 P.2d at 576; State v. Gilpin (1988), 232 Mont. 56, 70, 756 P.2d 445, 453; State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351; State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458. "Only in those rare cases where the story of a witness is so inherently improbable or is so nullified by material...