State v. Detonancour

• Decision Date: 25 October 2001
• Docket Number: No. 00-070.,00-070.
• Citation: 306 Mont. 389,34 P.3d 487,2001 MT 213
• Parties: STATE of Montana, Plaintiff and Respondent, v. Daniel J. DETONANCOUR, Defendant and Appellant.
• Court: Montana Supreme Court

34 P.3d 487

2001 MT 213

306 Mont. 389

STATE of Montana, Plaintiff and Respondent, v. Daniel J. DETONANCOUR, Defendant and Appellant.

No. 00-070.

Supreme Court of Montana.

Submitted on Briefs January 18, 2001.

Decided October 25, 2001.

For Appellant: Eric Rasmusson, Attorney at Law, Missoula, MT.

For Respondent: Honorable Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, MT, Robert R. Zenker, County Attorney, Virginia City, MT.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellant Daniel J. Detonancour was convicted of sexual assault, a felony, in a Madison County jury trial before the Fifth Judicial District Court. He appeals. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Whether the District Court abused its discretion by excluding evidence of the victim's conduct with Detonancour prior to the assault.

¶ 4 2. Whether the District Court abused its discretion by admitting evidence of Detonancour's conduct immediately after the assault.

¶ 5 3. Whether the District Court abused its discretion by allowing the emergency room nurse practitioner to testify about the mechanics of completing a rape kit.

¶ 6 4. Whether the District Court abused its discretion when it allowed the victim/witness advocate to testify about rape trauma syndrome (RTS).

¶ 7 5. Whether the jury instructions, reviewed as a whole, fully and fairly presented the law to the jury.

Factual and Procedural Background

¶ 8 On the evening of May 2, 1998, Donna Jenkins was visited at her home by her best friend, Jennifer Flesch, and Jennifer's 24-year-old son, Daniel Detonancour. Jennifer and Detonancour had come to borrow Jenkins's VCR. Sometime after midnight that same evening, Jenkins was awakened by a knock at her door. She saw that it was Detonancour and let him in. Jenkins and Detonancour's mother had been friends for ten years, so she thought she had no reason to be afraid of Detonancour. She assumed that he came over because he needed someone to talk to.

¶ 9 The trial testimony differed as to what happened next. Jenkins testified that Detonancour shoved her to the floor and tried to take off her clothes. She said, "no-no," and attempted to physically resist him as Detonancour took off her shirt with one hand and held her to the ground with his other hand. Jenkins became frightened that if she continued to resist him, Detonancour might kill her, so she allowed him to take off her clothes. He then removed his clothes and had sexual intercourse with her.

¶ 10 Jenkins testified further that after Detonancour got up, he went into her daughter's bedroom and returned to the living room wearing nothing but a pair of her daughter's underwear and stood very close to her. In order to distract him, Jenkins asked Detonancour to make her a drink. While he was out of sight in the kitchen, she called 911. She only stayed on the line for about 15 seconds. The 911 operator attempted to find Jenkins's location from the limited information contained in her brief call. She suspected that the call related to a medical emergency and ultimately contacted a woman in Pony who is trained as a first responder to medical emergencies, Janet Zimmerman. Janet arrived at Jenkins's house to find her sitting in a chair with a blanket around her. Detonancour came into the livingroom after Janet arrived, and she asked him to leave.

¶ 11 Detonancour testified that after having seven or eight beers at the Pony Bar, he was on his way home when he noticed that all the lights were on in Jenkins's house. He decided to stop by and knocked on the door. Jenkins let him in, and they sat together on the couch. Jenkins began touching his hair and flirting with him. She told him that she wanted to have sex with him, and since his girlfriend had left him, he decided to accept. He testified that they had consensual sexual intercourse and that afterwards, Jenkins asked him to make her a drink. When Zimmerman arrived, he felt out of place so he finished getting dressed and left.

¶ 12 On May 13, 1998, the State filed an Information charging Daniel Detonancour with sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA.

¶ 13 The State filed two motions in limine. It requested a court order prohibiting the defense from offering any evidence at trial concerning Jenkins's alleged sexual conduct and any evidence of Jenkins's use of alcohol. The District Court ruled that Detonancour could present evidence of Jenkins's alcohol use at the time of the offense and could not present evidence of her past sexual conduct, unless the past sexual conduct was with Detonancour.

¶ 14 The defense also filed motions in limine. Specifically, Detonancour requested a court order: 1) generally prohibiting the State from introducing evidence at trial of any other crimes, wrongs, or acts allegedly committed by Detonancour; 2) prohibiting the State from referring to Jenkins as a "victim"; 3) prohibiting the State from introducing evidence of witness tampering charges filed against Detonancour's mother; 4) prohibiting the State from making any reference to allegations that Detonancour masturbated in front of Jenkins while wearing her daughter's underwear; and 5) prohibiting the State from introducing Detonancour's statement at the time of his arrest that "this is pretty bizarre for screwing an old lady."

¶ 15 The District Court granted the motion prohibiting the State from using the term "victim," referring to Detonancour's masturbation and introducing evidence of his mother's witness tampering charge. The court reserved ruling on the admissibility of Detonancour's statement.

¶ 16 Before the trial, the District Court granted a defense motion requesting that the jury be instructed on the lesser included offense of sexual assault.

¶ 17 At the conclusion of the trial, the jury returned a verdict of not guilty to the charge of sexual intercourse without consent, and guilty to the charge of sexual assault, a felony. The District Court later sentenced Detonancour to ten years in Montana State Prison with a portion suspended based on Detonancour's performance in the prison's sexual offender treatment program. The court classified Detonancour as a Level III sex offender.

Discussion

Issue 1

¶ 18 Did the District Court abuse its discretion by excluding evidence of Jenkins's conduct with Detonancour prior to the assault?

¶ 19 In reviewing a district court's decisions regarding the admissibility of evidence relating to the extrinsic sexual conduct of sexual assault victims, we determine whether the district court abused its discretion. State ex rel. Mazurek v. Dist. Court of Fourth Jud. Dist. (1996), 277 Mont. 349, 353, 922 P.2d 474, 477.

¶ 20 Montana's rape shield law, codified at § 45-5-511, MCA, provides in relevant part:

(2) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

¶ 21 The compiler's comments to § 45-5-511, MCA, provide that:

[E]vidence pertaining to the sexual conduct of the victim is not admissible into evidence at trial. The purpose of this rule is to prevent the trial of the charge against the defendant being converted into a trial of the victim. There are only two exceptions... and both go directly to specific conduct which may be at issue in any given case. The first allows the defendant to introduce evidence pertaining to the victim's prior sexual conduct in relation to himself. Thus, if the victim and defendant have been sexually intimate previous to the alleged rape, the defendant may use evidence to this effect. [Emphasis added.]

See also State v. Wing (1994), 264 Mont. 215, 223, 870 P.2d 1368, 1373

.

¶ 22 In this case, Detonancour sought to enter testimony at trial that Jenkins pulled him onto her lap at a birthday party two days prior to the assault. He argues that this could be construed as sexual conduct between the victim and Detonancour as contemplated in § 45-5-511, MCA. At trial, Detonancour argued that this testimony went to the heart of his defense: that he and Jenkins engaged in consensual sex.

¶ 23 Detonancour urges this Court to define "sexual conduct" as contemplated in the statute as including "lingering touches, smoldering glances, the surreptuous [sic] passing of notes, casual contact between persons at social gatherings, and other methods of flirtatious behavior which form the invitation to engage in consensual sexual contact or sexual intercourse." Arguing this issue before the District Court, Detonancour's counsel noted that "these people engaged in consensual sexual relations. They did. But he did so because she led him on."

¶ 24 We decline to adopt this broad definition of sexual conduct. As the compiler's comments note, if Detonancour and Jenkins had been sexually intimate previous to the assault, that evidence would have been admissible. However, flirtatious behavior is not, contrary to Detonancour's opinion, an invitation to engage in sexual relations. An examination into the nuances of the victim's interactions with the defendant days before an alleged rape would effectively put the victim on trial. Not only is this evidence irrelevant to the issue of consent, it is precisely the harm that the rape shield statute is designed to prevent.

¶ 25 Both parties briefed this issue thoroughly and argued it before the District Court. We hold that the District Court did not abuse its discretion in excluding this testimony. It is simply not sexual conduct as contemplated by the statute.

Issue 2

¶ 26 Did the District Court abuse its discretion by admitting evidence of Detonancour's conduct immediately after the assault?

¶ 27 Trial courts have broad discretion in determining whether...