State v. Crider

• Citation: 375 Mont. 187,328 P.3d 612
• Decision Date: 28 May 2014
• Docket Number: No. DA 12–0487.,DA 12–0487.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Dean O. CRIDER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

375 Mont. 187

328 P.3d 612

STATE of Montana, Plaintiff and Appellee,

v.Dean O. CRIDER, Defendant and Appellant.

No. DA 12–0487.

Supreme Court of Montana.

Submitted on Briefs Feb. 12, 2014.

Decided May 28, 2014.

For Appellant: Jonathan King, Attorney at Law, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Mary Cochenour, Assistant Attorneys General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Dean O. Crider (Crider) appeals from the judgment of the Montana First Judicial District Court, Lewis and Clark County, following his jury conviction for felony Sexual Intercourse Without Consent in violation of § 45–5–503(1), MCA; misdemeanor Partner or Family Member Assault (PFMA) (second offense) in violation of § 45–5–206(1)(a), MCA; and felony Tampering With Witnesses and Informants in violation of § 45–7–206(1)(a), MCA. We affirm.

ISSUES

¶ 2 We review the following issues:

1. Did the District Court abuse its discretion when it admitted evidence that Crider had previously assaulted and harassed the victim ?

2. Should we exercise plain error review to review the District Court's instruction to the jury regarding the evidence of the previous bad acts ?

3. Did Crider receive ineffective assistance of counsel when his counsel failed to object to the State's use of the previous bad acts ?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Crider was M.W.'s high school crush. The two had been good friends for fifteen years when they started dating, in 2009. On July 8, 2011, Crider and M.W. took M.W.'s two young children to play at a park. While they were at the park, M.W. received a text message from an ex-boyfriend of hers that read “Where's my Friday night blow job <> LOL.” Crider saw the message. M.W. testified that the message was supposed to be a joke and would not have meant anything if Crider had not seen the message. “[B]ut because he was sitting there, it—it meant that there was going to be some not-so-fun stuff happening.” M.W. routinely allowed Crider to look through her phone because he always wanted to know who was calling her and texting her. After seeing the message, Crider became very angry.

¶ 4 Crider and M.W. drove to M.W.'s mother's house and dropped the children off. Then they went to Crider's house, where they argued for a little while and began drinking shots of Black Velvet whiskey. When they finished the Black Velvet they went to the Libation Station, two blocks from Crider's house, where they ran into friends he knew. M.W. testified that “while we were there, it was like everything was fine and nothing had happened.” Crider wanted to go to East Helena to continue socializing with the friends they met at the bar. The two bought a liter of Black Velvet to go and began driving to East Helena. They began arguing en route. While M.W. was driving, Crider began burning her with a cigarette and poured three-quarters of the bottle of Black Velvet over her head. At that point, M.W. testified, Crider had reached a point of anger where “he's just a completely different person.... It's like something clicks in his head, and it's just done. There's no changing his mind or calming him down.” She explained that she had not recognized his propensity for this kind of anger until about four months into the relationship. M.W. stopped the car and said she would try to fix things, because she loved him. The two returned to Crider's house to try to “work through it.”

¶ 5 At Crider's house, M.W. and Crider drank more Black Velvet. At some point M.W. may have told Crider he could “do whatever he wanted” to her. Crider told her that if she was going to act like a whore he was going to treat her like a whore. He made her take off her clothes and give him oral sex. Because Crider was holding M.W.'s hair and controlling the oral sex, she vomited four or five times. M.W. told Crider to stop. He did not stop. After at least half an hour of this, Crider dragged M.W. into the bathroom by her hair and began having anal sex with her. That did not last very long because “it hurt really bad.” M.W. told Crider to stop and he stopped almost immediately. He threw her on the bed and penetrated her vagina with his fist. This, M.W. testified felt “comparable to having a baby.” M.W. told Crider to stop and kicked him off her. He grabbed her by her hair and her arms and threw her, naked, out of the house. M.W.'s clothes and car keys were inside the house. She pounded on the door and begged Crider to let her back in, because she loved him and wanted to make it better. After five minutes, Crider let her back in. He pulled her around by the hair, threw her into walls and made her give him more oral sex. Then he threw her out again. This time she went to his mother's house, next door, and hid in the porch. His mother drove her home at 5:30 a.m.

¶ 6 The next morning, M.W. called the police to ask for help recovering her car and her keys. The police explained they could not do that unless a domestic report was filed. She declined to file a report because she did not want Crider to get in trouble. M.W. and Crider texted back and forth for awhile, then talked to one another. Crider was “apologetic and sorry and said he didn't really remember what happened.” They arranged a time when M.W. could get her possessions, but did not see each other again. M.W. did not tell anyone what had happened until she spoke to a friend a few days later. Her friend reported the incident. M.W. made verbal and written statements about the incident to the domestic violence officer with the sheriff's department.

¶ 7 Eight days after the incident occurred, and at the domestic violence officer's recommendation, M.W. went to the emergency room for an examination. The examination revealed bald spots on M.W.'s head where Crider had pulled out her hair. It also revealed cigarette burns, and bruising around both eyes. M.W. had rug burns and bruises on her knees. She had a bruise and a cut on her side that she believed she got when Crider threw her into a heater. She had abrasions around her anus and inside of her rectum.

¶ 8 Over Crider's motion in limine, the District Court admitted evidence of previous incidents of violence between M.W. and Crider, narrowly finding it probative of “motive” or “absence of mistake or accident.” The court declined to admit several incidents involving Crider with a previous partner. In July 2010, Crider had been convicted of PFMA to an incident with M.W. In January 2011, M.W. reported to law enforcement that Crider had broken down her door. In May 2011 M.W. called law enforcement to report that Crider was continually calling her and was parked in the area in which she lived. And in June 2011, M.W.'s mother called law enforcement to report that Crider was continually calling her phone. The District Court specifically cautioned in its Order ruling on the motion in limine: “If an issue arises about whether offered evidence falls within the parameters of that allowed by this Order, the parties shall bring the matter to the attention of the Court out of the hearing of the jury.”

¶ 9 Between the time when charges were pressed against Crider for his conduct in the July 2011 incident and the trial date, M.W. recanted her allegations against Crider. The defense entered into evidence several text messages M.W. sent to Crider saying that she still loved him and asking to see him before she pressed charges. There were also several photographic text messages of a tattoo of Crider's initials that M.W. got on her chest, after the incident occurred, inside a heart tattoo she had. Because the two were attempting to reconcile and Crider was influencing her, M.W. said, M.W. made a statement to the domestic violence officer with the sheriff's department that the sex had been consensual, but had been overly rough and aggressive. As part of this effort, and at Crider's urging, M.W. also left several voicemails on Crider's phone to make it seem as though she was at fault for the incident. She said that she had lied about the rape, that she had had an abortion without telling him, and that she was using methamphetamine. She also met with his lawyers to submit a tape recorded statement that she had lied about the rape.

¶ 10 Both the State and the defense hired experts to testify at trial regarding the psychology of abuse. The State's expert testified that domestic violence is a pattern of controlling behaviors that also includes violence at times to reinforce the control over the other person. The expert testified that often violence between partners will escalate over time—that a person who is not violent at the beginning of the relationship will become violent. Often after parties separate following an incident of domestic violence, the victim, believing the abuser is really sorry, will begin to question whether he or she correctly perceived events and whether his or her actions caused the violence. The expert testified that sometimes victims will recant allegations or minimize the abuse that occurred.

¶ 11 The defense expert testified that behaviors among abuse victims varied too widely to reliably characterize that behavior. The defense expert further testified that recanting or minimizing allegations of domestic violence does not necessarily mean someone is a victim. On cross examination, however, the defense expert conceded that it is not uncommon for victims of abuse to recant allegations, return to their abusers, or lie to get abusers out of trouble.

¶ 12 During its opening statement, the State explained: “And I can tell you that during this trial you're going to hear from [M.W.], but I'm not 100 percent sure whether what you're going to hear from her about that night when she sits in that chair—what version of it you're going to hear.” When M.W. testified, she stated that the July 2011 incident was...