State v. Berosik, DA 07-0731.

Docket NºNo. DA 07-0731.
Citation214 P.3d 776, 352 Mont. 16, 2009 MT 260
Case DateAugust 05, 2009
CourtUnited States State Supreme Court of Montana

Lori Adams, Deputy County Attorney, Kalispell, Montana.

Justice John WARNER delivered the Opinion of the Court.

¶ 1 After trial by jury, Darwin Keith Berosik was convicted of two counts of incest in the District Court of the Eleventh Judicial District, Flathead County. He was sentenced to 30 years in the Montana State Prison with 20 suspended. Berosik raises the following issues on appeal:

¶ 2 Issue 1: Must the judgment be reversed because Berosik was excluded from individual voir dire?

¶ 3 We conclude that the answer to the question posed by Issue 1 must be "yes." Thus, Berosik is entitled to a new trial. Although we reverse Berosik's conviction, we deem it appropriate to address other issues, as they are almost certain to arise again upon retrial. See State v. Michaud, 2008 MT 88, ¶ 43, 342 Mont. 244, 180 P.3d 636.

¶ 4 Issue 2: Did the District Court err in determining a child abuse expert was qualified to testify concerning the concept of grooming in child sexual abuse cases?

¶ 5 Issue 3: Did the District Court err in admitting evidence of prior acts by Berosik?

¶ 6 Issue 4: Did the District Court err in denying Berosik's motion to suppress evidence which was gathered by his wife?


¶ 7 In 1999, Berosik married and began living with Wanda Berosik and her three daughters, R.W., age 9, B.W., age 11, and M.W. age 15. The three girls often accompanied Berosik on his jobs as a truck driver. During these trips, Berosik would discuss puberty, make comments about the girls' bodies, and tell them they were beautiful. Over time, Berosik's comments became more sexually graphic.

¶ 8 On his trips with B.W., Berosik would talk to her about prostitutes, inquire into her sexual activity, and promote pornography, specifically books dealing with family members having sex.

¶ 9 When she was 14, B.W. incurred a telephone bill of $400. Berosik told B.W. she could help pay off her debt if she gave him oral sex. B.W. did not respond. When B.W. was 15, Berosik took her to Disneyland. During this trip, Berosik bought B.W. a vibrator and a pair of fuzzy handcuffs.

¶ 10 R.W. started riding with Berosik in his truck when she was 10. During trips he spoke to her about sex and promoted pornography. One time, Berosik attempted to grab R.W.'s breast. When R.W. was 12, she told Berosik she was curious to see how a man masturbated. Berosik masturbated in front of her. During later trips, Berosik gave R.W. incest pornography. On a trip to Disneyland, R.W. and Berosik stopped at a convenience store where Berosik asked R.W. to get a prostitute for him. She did as she was asked and then went into the store. When she returned, Berosik asked her if she wanted a prostitute and offered to pay for the service. R.W. declined.

¶ 11 Berosik bought R.W. several gifts. One was a tank top that Berosik told R.W. to wear without a bra. He also bought her a vibrator and a penis-shaped sucker. He later asked her if she used the vibrator.

¶ 12 In March 2005 when she was 15, R.W. began dating a 26-year-old man named Wesley. Berosik began asking her about sexual activity with her boyfriend. While Wanda and Berosik were out of town, M.W. caught R.W. and Wesley together and told Berosik. Berosik told R.W. to go to his brother's house until he returned. When he picked R.W. up at his brother's, he told her he would not tell Wanda about Wesley but in return, R.W. would have to "do [him] a favor." R.W. testified at trial that she understood this to mean sexual favors because Berosik had requested them before. Berosik told R.W. that to prove she would adhere to the deal, she must take off her shirt and bra. R.W. initially told him no. Berosik then told R.W. that Wesley would have to go to jail if Wanda found out because R.W. was under 16 years old and Wanda would call the police. R.W. took off her shirt and Berosik fondled her breasts. Later that day, Berosik asked R.W. to perform oral sex on him. She said no. Berosik reminded her that Wesley could go to jail. Berosik then masturbated and had R.W. perform oral sex on him. Eventually, R.W. told her mother about Berosik's actions. Her mother told her that she would tell the police but would wait because she needed Berosik's paycheck.

¶ 13 In March 2005, when B.W. was 16, Berosik caught her sneaking out of the house to see her boyfriend. Berosik told B.W. to take off her shirt and bra or he would take the keys to her car. B.W. did as told, leaving her sweater on. Berosik fondled her breasts. Later, Berosik asked B.W. if she ever performed oral sex. She said yes and put Berosik's penis in her mouth. A couple of nights later, Berosik went into B.W.'s room and fondled her breasts. The next day, Berosik told B.W. that while her mother was away, he wanted to "jump [B.W.'s] bones." B.W. went with her mother to run errands to avoid Berosik. When she returned, Berosik took her car away.

¶ 14 When Wanda told B.W. about Berosik's actions with R.W., B.W. revealed Berosik's sexual contacts with her. Eventually, Wanda told the police Berosik had sexually assaulted her daughters. She also told the police she had searched their home where she found sex toys and books about incest in B.W. and R.W.'s bedrooms. She boxed up these items and put them in storage. The police told Wanda to bring the box to the sheriff's office. Before she brought the items from the storage shed to the sheriff's department, she searched Berosik's truck and the house again, and found more sexually explicit materials. She delivered all of these items to law enforcement.

¶ 15 In June 2005, the State filed an information charging Berosik with sexual intercourse without consent. The information was later amended to charge three counts of incest. Count I alleged Berosik had oral sex with B.W. Count II alleged he had oral sex with R.W. The offenses were alleged to have occurred in March 2005. Count III was severed and is not a part of this appeal.

¶ 16 The affidavit in support of the information contained the statements provided by R.W. and B.W. concerning the bargains Berosik had made with them about the alleged incest (that he would turn in R.W.'s boyfriend and take away B.W.'s car if they did not have oral sex with him) and the resulting sexual acts.

¶ 17 The charges against Berosik were first tried in June 2006. The trial resulted in a hung jury. A second trial was scheduled. Before the second trial, the State filed notice of its intent to introduce other acts evidence pursuant to M.R. Evid. 404(b) and/or the transaction rule. The State gave notice that it would seek to introduce into evidence the incest pornography books, fuzzy handcuffs, and vibrators. The State also proposed to introduce the testimony of R.W. and B.W. concerning the prior sexual contacts and suggestive comments Berosik made to them. The State asserted this evidence was a part of the incest transactions as it proved that Berosik was grooming the girls so as to make it easier for him to later sexually assault them. The State also proposed to introduce expert testimony to assist the jury in understanding the concept of grooming, which the State avers is grounded in sound research.

¶ 18 Berosik moved in limine to exclude the physical and testimonial evidence of grooming as inadmissible character evidence because the acts were remote in time and did not fall within the exceptions of M.R. Evid. 404(b). He also moved to exclude the expert testimony, claiming the expert was not qualified.

¶ 19 Berosik also filed a motion to suppress the evidence gathered by his wife Wanda. Berosik argues that Wanda acted as an agent of the State when she searched his home and, because the police failed to obtain a search warrant, the items were illegally seized.

¶ 20 The District Court denied all of Berosik's motions to exclude evidence.

¶ 21 A second jury trial was held in March 2007. The District Court determined it would conduct individual voir dire of venirepersons who had personal experience with child or sexual abuse. Berosik claims on appeal he was excluded from the individual voir dire conducted in the judge's chambers.

¶ 22 During the trial, before ruling on Berosik's motion to exclude grooming evidence, the court heard the testimony of the State's proposed child abuse specialist outside the presence of the jury. After hearing the witness's testimony, the District Court either admitted or excluded each part of the proposed prior acts evidence listed in the State's notification. The District Court based its decisions on whether the evidence went to show grooming, which the court considered as included as part of the transaction of the charged incest, or whether it fit under an exception to M.R. Evid. 404(b). In a few instances, the District Court concluded the evidence was admissible under both rules.

¶ 23 The District Court allowed testimony regarding Berosik's prior comments about prostitutes; Berosik masturbating in front of R.W. in 2001; Berosik's discussions about puberty, the girls' bodies, their sexual activity, pornography and sex; his distribution of pornography; Berosik's proposition in 2003 that B.W. perform oral sex to pay off her debt for the phone bill; Berosik's statements that he would like to "make love to" R.W. and that B.W. was to "jump [his] bones"; Berosik fondling B.W. and R.W.; Berosik's mandate that the doors to R.W. and B.W.'s bedrooms not be locked; and Berosik's request to Wanda that their bedroom remain open while they had sexual intercourse while the girls...

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    • United States
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