State v. Crosley

• Decision Date: 14 April 2009
• Docket Number: No. DA 07-0443.,DA 07-0443.
• Citation: 206 P.3d 932,2009 MT 126,350 Mont. 223
• Parties: STATE of Montana, Plaintiff and Appellee, v. Richard Lee CROSLEY, Defendant and Appellant.
• Court: Montana Supreme Court

206 P.3d 932

2009 MT 126

350 Mont. 223

STATE of Montana, Plaintiff and Appellee, v. Richard Lee CROSLEY, Defendant and Appellant.

No. DA 07-0443.

Supreme Court of Montana.

Submitted on Briefs February 11, 2009.

Decided April 14, 2009.

For Appellant: Jim Wheelis, Chief Appellate Defender; Tammy Hinderman, Legal Intern, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Tammy Plubell, Assistant Attorney General, Helena, Montana George H. Corn, Ravalli County Attorney; William Fulbright, Deputy County Attorney, Hamilton, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Richard Lee Crosley (Crosley) appeals his conviction in the Twenty-First Judicial District Court, Ravalli County, of seven counts of incest, three counts of assault on a minor, and bail jumping. We affirm in part, vacate in part, and remand for re-sentencing.

¶ 2 We restate the issues on appeal as follows:

¶ 3 Whether the District Court abused its discretion when it denied Crosley's challenge for cause of potential juror H.J. Aronson (Aronson).

¶ 4 Whether the District Court properly admitted evidence of other acts of incest outside of Ravalli County under the transaction rule.

¶ 5 Whether Crosley was denied effective assistance of counsel.

¶ 6 Whether the District Court erred in sentencing Crosley pursuant to the law in effect at the time of sentencing rather than at the time of the offenses.

BACKGROUND

¶ 7 The evidence at trial indicated that Crosley abused his three oldest children from 1990 to 1998, while the family frequently moved residences, generally living in Ravalli County, Montana. Daughters, A.P. and J.P., were born in 1986 and 1988, and son, R.J., was born in 1991. Crosley was not charged with abusing his youngest daughters, R.P. and H.P., born in 1994 and 1997. Crosley's ex-wife, E.P., provided a chronology of where the family lived during this time. Crosley's children testified at trial about his escalating abuse, using the family's frequent moves and births of additional children to frame particular recollections of abuse. The charges against Crosley were similarly broken down by timeframes corresponding to residences where the abuse occurred.

¶ 8 A.P. testified that Crosley began sexually abusing her when she was approximately four. Initially the abuse consisted of fondling and oral sex. When A.P. was six or seven, the abuse escalated to sexual intercourse, and by the time she was nine, the abuse included anal sex. A.P. testified that the abuse continued until she disclosed it in 1998 when she was 12. After A.P.'s disclosure, J.P. recalled her father had touched her inappropriately as well. J.P. remembered fondling, but did not recall any instances of sexual intercourse or oral sex. A.P. testified that Crosley was the main disciplinarian in their house, and the primary form of discipline was spanking. Crosley initially spanked the children with his hands, but began using wooden spoons and an electrical cord as the children got older. Crosley hit both R.J. and J.P. with the plug end of a cord, sometimes on their bare skin. The children testified that Crosley shoved them, kicked them, and hung them upside down by their ankles. A.P. also testified that Crosley used pliers to twist her fingers until they cracked.

¶ 9 Crosley's sexual abuse of A.P. started while the family lived in an apartment on Second Street in Corvallis, Montana. A.P. recounted that while she was playing dress up and pretending to be a bride, Crosley gave her a little gold ring, had her repeat marriage vows, and told her she was his wife. Crosley reminded A.P. that she was his wife throughout her childhood. The first instances of sexual abuse at the Second Street apartment involved Crosley putting A.P.'s hand on his penis, Crosley touching A.P.'s genitals, and Crosley forcing A.P. to perform oral sex on him at least three times. A.P. testified that the sexual contact continued when the family moved to Marcus Street in Hamilton, although her only vivid memory was Crosley teaching her how to "French kiss." The family moved to Charlos Heights where Crosley fondled A.P.'s genitals and had her stroke his penis. A.P. testified about being in the back seat of a car in the garage where Crosley forced her to perform oral sex on him. Crosley's sister-in-law, Tonya Crosley, testified that she walked into the garage on one occasion and found A.P. in the back seat of a vehicle with Crosley.

¶ 10 Crosley had sexual intercourse with A.P. for the first time during a trip to California at the time the family was living in the Charlos Heights house. When A.P. tried to get away, Crosley slapped her across the face and knocked her off the bed. A.P. recalled bleeding and soreness in her vaginal area for several days. She was about seven years old.

¶ 11 Crosley used religion and social isolation to keep his sexual abuse a secret. Crosley invoked the Bible numerous times to convince A.P. that there was nothing wrong with their sexual relationship and that she was his wife. Crosley assured A.P. that they should not tell her mother about their relationship because she did not think it was okay to have more than one wife, and she would be angry with A.P. and love her even less than she already did. Crosley convinced A.P. that her mother did not love her as much as she loved A.P.'s siblings and that only he really loved her.

¶ 12 The sexual abuse continued as the family moved around Montana, living outside of Ravalli County in Missoula and Ronan for several years. Crosley's sexual abuse of A.P. escalated to anal intercourse in Ronan. This caused A.P. extreme embarrassment and bleeding. During this time, Crosley and A.P. often visited her paternal grandparents in Corvallis where the sexual abuse continued. A.P. testified to multiple incidents of sexual intercourse, oral sex, and genital touching in an upstairs bedroom at her grandparents' house, as well as three occasions when Crosley made her perform oral sex on him in her grandparents' barn.

¶ 13 While the family lived in Ronan, A.P. recalled seeing Crosley fondle J.P. and Crosley put J.P.'s hand on his penis. Crosley began allowing J.P. to watch the sexual contact between him and A.P. A.P. recounted one incident when the girls were playing dress up with strips of cloth to mimic Indian princesses and Crosley tied J.P. up with some of the strips, forcing her to watch as Crosley had sex with A.P. While J.P. did not recall ever having intercourse with Crosley, she did remember how he would fondle her under her dress while she sat in his lap.

¶ 14 When the family moved to Fish Hatchery Road outside of Hamilton, the sexual abuse escalated to what A.P. described as a "torture stage." There was a small room in the basement that was reached through a hole in the foundation wall where Crosley's sexual intercourse with A.P. became a "fairly regular occurrence." J.P. recounted at trial that she once found Crosley and A.P. naked on a mattress in the crawl space in the basement. Crosley also hung both A.P. and J.P. by their ankles from the ceiling in the basement. A.P. also testified that Crosley used pliers to twist her fingers until they cracked in this basement.

¶ 15 Crosley physically abused his children on multiple occasions. He was particularly violent to R.J. Crosley repeatedly spanked him with the plug end of a lamp cord, shoved him into walls, and picked him up by the head. J.P. recounted being thrown to the ground and kicked repeatedly by Crosley once when she did not complete a task to his liking.

¶ 16 The family moved to the Main Street house in Corvallis where all forms of sexual abuse continued. Crosley would drive down to their church parking lot where he had A.P. sit on his lap in a skirt or dress without underwear and fondle her as she read the Book of Psalms from the Bible. A.P. invited friends to spend the night to celebrate her 12th birthday when Crosley was scheduled to be out of town. Crosley returned unexpectedly and ordered A.P. to follow him to his bedroom where he had sex with her while her guests were in the living room. J.P. remembered that A.P. emerged from the bedroom looking sad and dejected. Crosley then called J.P. into the bedroom where he put his penis in her panties.

¶ 17 A.P. finally disclosed Crosley's years of sexual abuse to her mother. On one prior occasion when she was about nine, her mother read her a "Good Touch, Bad Touch" book and A.P. disclosed that Crosley had "rubbed" on her. This led her mother to confront Crosley and implement some "modesty rules," however the abuse resumed. A.P. effectively disclosed Crosley's abuse after her 12th birthday, when she began hearing Crosley telling her younger sister, R.P., the same things he used to tell her, that her mother did not love her anymore because R.P. was no longer the baby of the family. After A.P.'s disclosure, E.P. initially tried to work things out with their pastor's help, however soon went to the authorities. Detective Peter Clarkson with the Ravalli County Sheriff's Office interviewed A.P. regarding the sexual abuse in 1998, and again in 2006.

¶ 18 On August 12, 1999, Crosley was charged by information with incest, involving sexual intercourse without consent with A.P. Crosley appeared with counsel and pled not guilty on August 25, 1999. Crosley was released on his own recognizance, failed to appear for his omnibus hearing, and a bench warrant was issued for his arrest on November 17, 1999. Crosley was a fugitive until his arrest in August, 2006. Following a renewed investigation, an Amended Information was filed charging Crosley with seven counts of incest. A second Amended Information was filed on December 11, 2006, charging Crosley with eight counts of incest, corresponding to time periods associated with where the abuse occurred and which child was the victim; three counts of assault on a minor, one for each child; and bail jumping.

¶ 19 On November 30, 2006, the...