State v. Clark

• Decision Date: 20 December 2005
• Docket Number: No. 04-282.,04-282.
• Citation: 2005 MT 330,125 P.3d 1099,330 Mont. 8
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kelly Dale CLARK, Defendant and Appellant.

Page 1099

125 P.3d 1099

2005 MT 330

330 Mont. 8

STATE of Montana, Plaintiff and Respondent, v. Kelly Dale CLARK, Defendant and Appellant.

No. 04-282.

Supreme Court of Montana.

Submitted on Briefs October 19, 2004.

Decided December 20, 2005.

For Appellant: Daniel R. Wilson, Measure & Wilson, Kalispell, Montana.

For Respondent: Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana Robert J. Long, County Attorney; Mitchell A. Young, Deputy County Attorney, Polson, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Kelly Dale Clark (Clark) appeals the judgment of conviction for sexual assault and the order denying his motion for a new trial entered in the Twentieth Judicial District Court, Lake County. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 We address the following issues on appeal:

¶ 3 Did the District Court commit plain error by not instructing the jury that it must be unanimous as to the means by which Clark subjected his stepdaughter to sexual contact?

¶ 4 Did the District Court abuse its discretion by denying Clark's motion for a new trial after the complaining witness recanted her testimony?

BACKGROUND

¶ 5 On or around July 18, 2002, Clark's fourteen-year-old stepdaughter, T.C., came home from babysitting and changed into a bikini in preparation for mowing the lawn. Her mother was gone for the evening, working. Clark came home from golfing and laid on the couch in the living room. According to T.C.'s later testimony, as she came into the living room Clark asked her if one of her breasts was bigger than the other, and he directed her to kneel beside him, which she did. T.C. stated that Clark then placed his hands on her breasts, said that he could not tell if one was larger than the other, then pushed the bikini top up, exposing both breasts. T.C. covered herself with her hands, but Clark said, "It's not like I haven't seen boobs before." T.C. testified that Clark then showed her "boob exercises" by pushing T.C.'s breasts up, down, and sideways. Afterward, Clark told T.C. that she did not need to tell her mom about what happened.

¶ 6 One week later, T.C. told her mother, Christina, what Clark had done, and Christina called the police. Having obtained a restraining order against Clark, Christina and T.C. returned home. That night, Clark came to the house to confront Christina about the incident. Clark and Christina argued, culminating in Christina retrieving a gun from her bedroom, Clark retreating outside, and T.C. calling 911. Later that night, Clark was arrested. Within a few weeks, Clark and Christina were back together.

¶ 7 In February 2003, Clark was tried for sexual assault and violating an order of protection.¹ At trial, T.C.'s credibility was an issue, and there was evidence that she had lied on several occasions in the past and that she had changed her story about what had happened with Clark in the living room. Christina testified at trial that, on occasion, she had encouraged T.C. to lie in order to avoid what she perceived to be overly harsh punishments from Clark.

¶ 8 Christina also testified that in the weeks and months after the incident she began to disbelieve T.C.'s version of events. In describing at trial the confrontation she had with her daughter on the matter, Christina said the following:

I wanted to talk to her about it, and I told her that I didn't feel that she was being truthful. I didn't feel that she was telling the whole truth. I also felt that she was telling a lot of things that weren't true.

And she told me that she was. And I told her, no, you aren't; you're not telling the truth. I don't believe you. And I told her that when she wants to come and tell me the truth, then I'll be there.

And I think it was — I don't know how much time passed. She came back in the living room and she told me she was sorry that she had done this, and that Kelly didn't do all of those things that she said he had done.

After this conversation, Christina instructed T.C. to call Detective Doyle, to whom they had originally reported the incident in late July. On the phone with the detective, T.C. recanted her story, saying that it did not happen as she had described and that the incident was not "perverted."

¶ 9 On October 23, 2002, Detective Doyle and Deputy County Attorney Young interviewed T.C. in a room at her school while Christina waited in the hallway outside where should could not hear the conversation. In that interview, T.C. told a substantially similar story as she had in her first report to the police. At trial, the State had T.C. read from the transcript of that interview:

Q. [by the State] . . . I'm going to read the question and I want you to read me the answer back; okay?

A. [by T.C.] Yeah.

Q. Okay. "What made you call me up that day and tell me that it was not true."

A. "Well, my mom had talked to me that day and, uh, we were talking about Kelly and what would happen to him if she and she said she was going she was getting sick and tired of listening to me telling all the she thought I was lying and so she wanted me to tell the truth, so I lied because I didn't want her to get mad. And she said that I couldn't be in her life if I didn't tell the truth. So I had no choice."

Q. Your mom told you that she was getting sick and tired of listening to your lies and that you couldn't be in her life if you kept it up?

A. Yes.

¶ 10 In her trial testimony, T.C. admitted that she had lied about some of the details she had initially provided to the police about the incident with Clark. In addition, she stated that, after the prosecutor had explained what sexual assault was, she did not believe she had been sexually assaulted. She maintained that what Clark had done to her was not "perverted" or "sexual" but was done with the intention of helping her. T.C. also stated that she wanted to resume living with Clark.

¶ 11 Clark's trial testimony differed from T.C.'s in several respects. He disputed T.C.'s contention that he initiated the conversation about her breasts. Clark asserted that T.C. mentioned that her breasts were starting to grow and then came over and knelt beside him by her own volition. Clark stated that T.C. asked him whether her breasts were even, and then, to his great surprise, she lifted her bikini top, exposing her breasts. He maintained that he reached out and touched her with two fingers on the inside of her breast and said that one was larger than the other. After just a few seconds, T.C. put her top back on and started doing the breast exercises that Clark had previously described to her.

¶ 12 Both T.C. and Clark testified that when she had any questions about sexual matters, she would come to her stepfather rather than her mother, and that it was not unusual for T.C. and Clark to have these conversations.

¶ 13 Despite the attacks on T.C.'s credibility, T.C.'s testimony about her interpretation of the incident with Clark, and Clark's testimony as to his version of events, the jury returned a verdict of guilty.

¶ 14 Soon after the trial, T.C. went to live with Alana Myers and her husband, a pastor of a church in Bigfork, though T.C. would also periodically spend a few days at a time with Christina. One evening not long after the trial, Myers and T.C. had a direct and open conversation in which Myers, cognizant of T.C.'s mendacious tendencies, encouraged T.C. to be completely open and honest about what had happened with Clark, though she was careful not to suggest an answer. T.C. asked what she could do, and Myers said that T.C. could write a letter to Clark's attorney. Two to four days later, without reminder or prompting from Myers, T.C. showed her a rough draft of a letter in which T.C. partially recanted her trial testimony. After Myers helped T.C. clear up some grammatical and punctuation errors, the letter was given to Clark's attorney.

¶ 15 In March 2003, Clark moved for a new trial asserting that T.C. had recanted her trial testimony and that the recantation was new evidence. At a hearing on the matter, T.C. explained that she had lied on the stand because she was confused and scared. T.C. stated that she initiated the contact between her and Clark, that she knelt down without being asked by Clark, and that she, not Clark, lifted her bathing suit top. Though she testified that Clark did not grope her breasts in any way, T.C. maintained that Clark did touch her on the side of her breast and that she was surprised that he did so. Clark argued that this was newly discovered evidence which entitled him to a new trial. The District Court denied the motion.

¶ 16 The District Court sentenced Clark to twenty years imprisonment, sixteen suspended, for the sexual assault conviction and six months imprisonment, all suspended, for violating an order of protection. Clark appeals.

STANDARD OF REVIEW

¶ 17 This Court explained the standards for applying plain error review in State v. Finley (1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215, overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817:

[T]his Court may discretionarily review claimed errors that implicate a criminal defendants fundamental constitutional rights, even if no contemporaneous objection is made . . . where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process. . . . [W]e will henceforth use our inherent power of common law plain error review sparingly, on a case-by-case basis. . . .

¶ 18 Generally, "[t]he standard of review of a district courts ruling on a motion for new trial is whether the district court abused its discretion." State v. McCarthy, 2004 MT 312, ¶ 43, 324 Mont. 1, ¶ 43, 101 P.3d 288, ¶ 43. The applicable standards of review will be discussed further below.

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