State v. Garza

• Decision Date: 23 May 2023
• Docket Number: DA 21-0016
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. DONALD GARZA, Defendant and Appellant.
• Court: Montana Supreme Court

1

2023 MT 93N

STATE OF MONTANA, Plaintiff and Appellee, v. DONALD GARZA, Defendant and Appellant.

No. DA 21-0016

Supreme Court of Montana

May 23, 2023

Submitted on Briefs: March 1, 2023

District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 19-301A Honorable Peter B. Ohman, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Tammy A Hinderman, Assistant Appellate Defender, Helena, Montana.

For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana.

Audrey S. Cromwell, Gallatin County Attorney, Bozeman, Montana.

OPINION

Jim Rice Justice.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Donald Garza appeals from his conviction after jury trial of the crimes of Incest, Sexual Intercourse Without Consent, and two counts of Sexual Abuse of Children, challenging rulings by the Eleventh Judicial District Court and, alternatively claiming ineffective assistance of counsel (IAC). We affirm.

¶3 Donald Garza and Michelle Holbrook married in Utah in 2007. Holbrook had two daughters from a previous relationship, B.G. (born 1998) and A.G. (born 2000), and Garza and Holbrook had two children together, C.G. and D.G. Garza and Holbrook moved approximately nine times during their marriage, and the family moved to Montana in 2010. Holbrook worked two jobs and often worked seven days a week to support the family, while Garza stayed at home and was primarily responsible for housekeeping, child-rearing, cooking, and driving. Garza and Holbrook separated in 2016, and in 2018, B.G. disclosed to Holbrook that Garza had sexually abused B.G. throughout the duration of Garza and Holbrook's marriage. Holbrook and B.G. inquired of A.G., who also disclosed long-term sexual abuse by Garza. Holbrook contacted police and Garza was charged.

¶4 At trial, A.G. and B.G. both testified to longstanding abuse by Garza. A.G. testified about his inappropriate touching and fondling beginning at ten years of age, and both testified to years of sexual intercourse without consent, emotional abuse, and physical abuse. Garza assaulted the girls at night in their bedrooms on a weekly and often nightly basis, and would call the girls' schools, feigning their illness, to keep them at home and assault them during the day. Garza isolated the girls from outside contact, restricting their access to friends, phones, and social media, and otherwise limiting their opportunities to confide in others. Garza's abuse was methodical and lasted for over five years. Garza was convicted of incest, sexual intercourse without consent, sexual abuse of children for possessing internet child pornography, and sexual abuse of children for possessing nude photographs and video of A.G.

¶5 On appeal, Garza argues the State presented evidence in violation of the District Court's order in limine, and contends "the highly prejudicial nature of this evidence, the lack of any curative instruction, and the lack of corroboration of the complaining witnesses' somewhat incredible allegations" requires a new trial on all of the charges. Prior to trial, Garza filed an uncontested motion in limine to preclude the State from introducing evidence about his past criminal convictions. However, on direct examination by the State, A.G. briefly referenced that Garza had been in prison:

State: Do you ever recall a time when [Garza] would threaten to commit suicide?

A.G.: Yes.

State: And did this happen at all in the green house or red house, or during that timeframe that you specifically recall?

AG.: No. No, I don't remember him saying that to me. I remember - not in those houses. I remember once talking to him in that red house, and I said something, like, "Why do you have sex with me when I don't want to?" Something along those lines, and he accused me of, pretty much, calling him a rapist, and said that if he ever went back to prison, he would make it count.

Defense Counsel: Your Honor, may we approach?

A.G.: I apologize.

The Court: We can do that at break.

¶6 (Emphasis added.) Defense counsel moved for a mistrial, arguing he "distinctly heard a murmur in the gallery" when A.G. indicated that Garza had been in prison. The State responded, arguing that the statement was "one very short reference to him having been in prison," and because A.G. did not "indicate why [Garza] had been to prison, how long he had been to prison for, any of the circumstances surrounding his prison sentence, [or] when that was in relationship to [when] he came into [A.G.'s] life," the comment was not prejudicial. The District Court took the matter under advisement and, after a short recess, denied the motion, reasoning the statement was "gratuitous" and "the Court did not hear any murmurs or noises from the jurors in reactions to the statement . . . therefore, [the Court] finds that the statement as not overly prejudicial in light of the other testimony presented." The District Court stated it was "willing to offer a cautionary instruction," but defense counsel declined, stating it did not want to "shine light on [the statement] again."

¶7 This Court reviews a denial of a motion for mistrial for an abuse of discretion. State v. Erickson, 2021 MT 320, ¶ 17, 406 Mont. 524, 500 P.3d 1243. A district court abuses its direction when it "acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice." State v. Zimmerman, 2018 MT 94, ¶ 13, 391 Mont. 210, 417 P.3d 289. A mistrial is appropriate when a reasonable possibility exists that inadmissible evidence may have contributed to the conviction, and to determine if evidence is considered to have contributed to the conviction, the Court considers "the strength of the evidence against the defendant, the prejudicial effect of the testimony, and whether a cautionary instruction could cure any prejudice." State v. Bollman, 2012 MT 49, ¶ 33, 364 Mont. 265, 272 P.3d 650.

¶8 Upon review, we conclude A.G.'s brief reference could not reasonably have contributed to Garza's conviction. The statement carried little impact in view of the extensive evidence introduced by the State. Similar to the comment at issue in Bollman, it was "not solicited by the State . . . [and] appear[ed] to be an inadvertent remark." Bollman, ¶ 34. Further, A.G. offered no further detail about Garza's prior convictions and his time in prison. After A.G. made the statement, the prosecutor quickly moved to a different topic. We thus conclude that "any prejudice resulting from the statement was very minor, if it was prejudicial at all." Bollman, ¶ 35. And, as in Bollman, where we found it was not error for the District Court to fail to give a cautionary instruction when the defendant had not requested one, Garza declined a cautionary instruction when offered by the District Court. We conclude the District Court did not abuse its discretion by denying the motion for a mistrial.

¶9 Garza next argues his incest conviction must be reversed because the District Court's instruction as to Count 1, Incest, did not admonish the jury that it must consider only his acts that occurred in Montana. He argues Count 1 must be reversed and that he "is entitled to resentencing on Counts 2 and 3 because the court bundled all three sentences together, rendering it impossible to tell what sentence the court would have imposed without the conviction on Count 1." Jury Instruction 5 pertained to Count 1, and provided:

To convict the Defendant of incest, the State must prove the following elements:

1. That the Defendant had sexual contact with [A.G.];

AND

2. That [A.G.] was the Defendant's stepdaughter;

AND

3. That the Defendant acted knowingly.

If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the Defendant guilty.

If, on the other hand, you find from your consideration of the evidence that any of these elements has not been proved beyond a reasonable doubt then you should find the Defendant not guilty.

¶10 Garza argues the instruction omits the requirement of § 46-2-101(1)(a), MCA, that a conviction must be for offenses "committed either wholly or partly within the state." No objection was offered by defense counsel, and thus Garza asks this Court to utilize plain error review or, alternatively, to conclude his trial counsel's failure to object constituted IAC. "A party who requests reversal based on plain error review 'bears the burden of firmly convincing this Court that the claimed error implicates a fundamental right and that such review is necessary to prevent a manifest miscarriage of justice or that failure to review the claim may leave unsettled the question of fundamental fairness of the proceedings or may compromise the integrity of the judicial process.'" State v. McCaulou, 2022 MT 197, ¶ 33, 410 Mont. 291, 518 P.3d 862 (citing State v. George, 2020 MT 56, ¶ 5, 399 Mont. 173, 459 P.3d 854). "When a defendant raises the plain error doctrine to request our review regarding issues that were not objected to at the district court level, our review is discretionary." State v. Gray, 2004 MT 347, ¶ 13, 324 Mont. 334, 102 P.3d 1255. We exercise plain error review when a failure to do so may result in a "manifest miscarriage of justice, [] leave unsettled the question of the...