State v. Duncan

• Decision Date: 29 April 2008
• Docket Number: No. DA 06-0653.,DA 06-0653.
• Citation: 2008 MT 148,183 P.3d 111,343 Mont. 220
• Parties: STATE of Montana, Plaintiff and Appellee, v. Alvin J. DUNCAN, Defendant and Appellant.
• Court: Montana Supreme Court

183 P.3d 111

343 Mont. 220

2008 MT 148

STATE of Montana, Plaintiff and Appellee, v. Alvin J. DUNCAN, Defendant and Appellant.

No. DA 06-0653.

Supreme Court of Montana.

Submitted on Briefs February 13, 2008.

Decided April 29, 2008.

For Appellant: Roy W. Johnson, Attorney at Law, Billings, Montana.

For Appellee: Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Mike Weber, County Attorney, Sidney, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Alvin J. Duncan ("Duncan") was convicted by a jury of two counts of felony sexual assault, and sentenced to forty years in prison, with twenty-four years suspended. He appeals both the jury's verdict and the legality of his sentence. We affirm in part, and reverse and remand in part.

¶ 2 Duncan raises the following issues on appeal:

¶ 3 I. Did the District Court err by denying Duncan's motion to dismiss the charges pertaining to C.S.?

¶ 4 II. Did the District Court abuse its discretion by denying Duncan's motion to sever the charges?

¶ 5 III. Did the District Court abuse its discretion by denying Duncan's motion to continue the trial?

¶ 6 IV. Was the jury's verdict supported by sufficient evidence?

¶ 7 V. Was the sentence imposed by the District Court legal?

BACKGROUND

¶ 8 In the same information, the State charged Duncan with sexually assaulting his stepdaughter, C.S., and her friends, V.G. and N.M., all minors. The State later amended the information to add a fourth count against Duncan: sexual intercourse without consent with C.S. The offenses all allegedly took place in Duncan's home during the summer of 2004.

¶ 9 During a search of Duncan's house, the police seized C.S.'s comforter as evidence. The comforter was stored in the state crime laboratory, but was destroyed when the sprinklers in the evidence lab malfunctioned. The malfunction occurred before the comforter could be tested for the presence or absence of Duncan's DNA. Duncan subsequently moved to dismiss the two charges concerning C.S., arguing that the State's destruction of potentially exculpatory evidence denied him due process of law.

¶ 10 Prior to trial, Duncan also moved to sever the charges. The District Court denied his motion, holding that the offenses were properly joined under § 46-11-404(1), MCA, and that the consolidation of the charges would not unfairly prejudice Duncan's defense. The District Court ruled on both the motion to dismiss and the motion to sever, as well as several of Duncan's other pre-trial motions, two days before trial was scheduled to begin. Duncan immediately filed a motion to continue the trial, arguing that in light of the District Court's then recent rulings, he needed more time to prepare his defense. The District Court denied his motion to continue, and the matter proceeded to a jury trial.

¶ 11 At trial, each of the victims took the stand to describe the alleged sexual assaults. C.S. testified that Duncan frequently hugged her, and that while he was hugging her, his hands would roam to her chest, thighs, or buttocks. During the summer of 2004, when her mother was at work, C.S. said Duncan invited her into his bedroom. She alleged that Duncan asked her to lie down on the bed and take off her pants, so he could "check[ ][her] for ticks." Then, C.S. testified, he penetrated her with his finger and his penis. C.S. claimed that Duncan forced her to have sexual intercourse on at least one other occasion, and repeatedly asked her if she wanted to have sex with him.

¶ 12 One night during that same summer, N.M. slept over at C.S.'s house. At about one o'clock in the morning, N.M. testified, she felt a hand on her chest. N.M. claimed she awoke to find Duncan's hand underneath her bra. She asked him to stop and threatened to tell his wife.

¶ 13 V.G., nine years old, was a friend of Duncan's youngest stepdaughter. V.G. testified that Duncan often tickled her. Twice, she testified, he touched her in her "lower part" when he tickled her. The first time, she alleged, he "backed me into a corner and started tickling me and kept going lower and lower. . . . [T]hat was above my swimming suit and my shorts." The second time, she claimed, "he went lower and lower, and this time under my bathing suit still the front area." V.G. did not believe that Duncan had touched her by accident, because "it was longer than he tickled me on my stomach." Duncan's youngest stepdaughter testified that she witnessed this last incident: "I saw him, because [V.G.] was backed into a corner and he was tickling her, and then I saw him reach down her pants."

¶ 14 The jury convicted Duncan of sexually assaulting N.M. and V.G., and acquitted him of sexually assaulting and raping C.S. As part of the pre-sentence investigation report (PSI), Duncan submitted to a psychological evaluation performed by Michael Sullivan ("Sullivan"), the director of a sex offender treatment program. Sullivan classified Duncan as a Level I, or low risk, sex offender. Throughout the evaluation and the sentencing hearing, Duncan maintained his innocence, and denied assaulting the girls. He claimed the girls had conspired against him to fabricate the charges. Duncan believed C.S. disliked him and wanted to get rid of him so her divorced parents could reunite. At the sentencing hearing, Sullivan testified that Duncan would be ineligible for most community-release treatment programs, due to the fact that he denied committing the sexual assaults. When the District Court pronounced its sentence, it cited Duncan's lack of remorse as a factor influencing its decision. Duncan appeals both of his convictions as well as his sentence.

DISCUSSION

¶ 15 I. Did the District Court err by denying Duncan's motion to dismiss the charges pertaining to C.S.?

¶ 16 On appeal, Duncan claims that the District Court never ruled on his motion to dismiss the charges concerning C.S., and that the court's failure to rule constitutes error.¹ Our review of the record suggests otherwise. On March 23, 2006, Duncan filed his motion to dismiss. The District Court addressed this motion, along with Duncan's other pre-trial motions, at the final pre-trial conference on April 28, 2006. On May 9, 2006, the clerk of court telephoned Duncan's attorney to notify him that the court had orally denied all his pending pre-trial motions—a fact which Duncan himself acknowledges in the motion for continuance he filed later that day. The District Court did not issue any written order or explanation concerning its ruling on the motion to dismiss.

¶ 17 Though not properly couched, Duncan's challenge essentially presents a question of law: whether the District Court erred by denying his motion to dismiss based on the destruction of evidence in state custody. We review a district court's decision to grant or deny a motion to dismiss to determine if the court applied the law correctly. State v. Hicks, 2006 MT 71, ¶ 25, 331 Mont. 471, ¶ 25, 133 P.3d 206, ¶ 25. To prevail on his due process claim, Duncan must prove that the State negligently suppressed evidence which was exculpatory and vital to his defense. State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, ¶ 16, 962 P.2d 571, ¶ 16. Exculpatory evidence is evidence that "[w]ould have tended to clear the accused of guilt, to vitiate a conviction." Belgarde, ¶ 16 (internal citation omitted).

¶ 18 Duncan has failed to prove that the evidence in question was exculpatory. The comforter in question was seized from C.S.'s room. C.S. testified that Duncan forced her to have sex with him in his bedroom, on his bed. Even assuming that her comforter would have tested negative for Duncan's DNA, this evidence would not have exonerated him of the charges concerning C.S. Since the comforter had no potential to clear Duncan of guilt, we conclude Duncan was not deprived of due process of law. Thus, the District Court did not err in denying Duncan's motion to dismiss.

¶ 19 II. Did the District Court abuse its discretion by denying Duncan's motion to sever the charges?

¶ 20 The decision to sever charges which were brought jointly to trial is entirely within the discretion of the district court. State v. Riggs, 2005 MT 124, ¶ 34, 327 Mont. 196, ¶ 34, 113 P.3d 281, ¶ 34. We review a district court's decision to deny a motion to sever for abuse of discretion only. State v. Freshment, 2002 MT 61, ¶ 25, 309 Mont. 154, ¶ 25, 43 P.3d 968, ¶ 25. The burden is on the defendant seeking severance to prove that the charges should not have been joined under § 46-11-404(1), MCA, or that severance under § 46-13-211(1), MCA, is necessary to prevent unfair prejudice. Riggs, ¶ 34. We have cautioned that this burden is not easily discharged:

It is not sufficient for a criminal defendant to prove that he will face some prejudice as a result of a joint trial, or that he stands a better chance of acquittal if separate trials are held. Rather, a criminal defendant must prove that the prejudice is so great as to prevent a fair trial.

Riggs, ¶ 34.

¶ 21 1. Were the charges properly joined under § 46-11-404(1), MCA?

¶ 22 Section 46-11-404(1), MCA, provides that two or more charges may be tried jointly if they "are of the same or similar character or are based on the same transactions connected together or constituting parts of a common scheme or plan." The District Court ruled that the charges were properly joined because they all allegedly took place at Duncan's home, during the same time period (the summer of 2004), and were similar in character. On appeal, Duncan argues that the charges were improperly joined because the witnesses' testimony did not overlap.

¶ 23 Our review of a charging document to determine whether the charges were properly joined presents a question of law which we review de novo. State v. Southern, 1999 MT 94, ¶ 17, 294 Mont. 225, ¶ 17, 980 P.2d 3, ¶ 17. Section 46-11-404(1), MCA, provides two separate scenarios in which charges may be joined: (1) the...