State v. Grimshaw

• Decision Date: 11 August 2020
• Docket Number: DA 18-0342
• Citation: 401 Mont. 27,469 P.3d 702,2020 MT 201
• Parties: STATE of Montana, Plaintiff and Appellee, v. Philip Bryson GRIMSHAW, Defendant and Appellant.
• Court: Montana Supreme Court

401 Mont. 27

469 P.3d 702

2020 MT 201

STATE of Montana, Plaintiff and Appellee,

v.Philip Bryson GRIMSHAW, Defendant and Appellant.

DA 18-0342

Supreme Court of Montana.

Submitted on Briefs: June 3, 2020

Decided: August 11, 2020

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Ryan Ball, Stephanie Fuller, Cascade County Deputy Attorneys, Great Falls, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Philip Bryson Grimshaw (Grimshaw) appeals the Judgment issued by the Eighth Judicial District Court, Cascade County, on April 18, 2018, following his conviction of Sexual Intercourse Without Consent, a felony, in violation of § 45-5-503, MCA.

¶2 We address the following restated issue on appeal:

Whether the District Court abused its discretion and compromised Grimshaw's right to a fair trial by allowing expert witness testimony regarding statistics about false reports of sexual assault.

¶3 We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Grimshaw is step-cousins with T.G. The two are around the same age and were close friends, particularly in the years after Grimshaw's father died. Grimshaw developed romantic feelings for T.G., which he expressed to her. She informed Grimshaw they could not be together because they are cousins. The two remained close friends, however.

¶5 Shortly before midnight on November 10, 2016, T.G. got off work. She had been texting with Grimshaw throughout the day and went to Grimshaw's house in Great Falls around 1:00 a.m. on November 11, 2016, after Grimshaw texted her and asked if she wanted to "come party." T.G. went to the house and joined in playing drinking games with around seven or eight other people. After a while, T.G. heard yelling and glass break. She discovered Grimshaw in the bathroom with his hand bleeding because he had punched a picture on the wall. Grimshaw kicked everyone else out of the party and went for a drive with T.G. Grimshaw and T.G. took some alcoholic beverages from the house and drove to the gravesite of Grimshaw's father, an activity they had done many times before. At the gravesite, the two sat on the grass and talked while drinking and smoking. They left the cemetery around 4:00 a.m. and continued to drive around while drinking and smoking marijuana. The two arrived at T.G.’s house around 6:00 a.m. on the morning of November 11.

¶6 After arriving at T.G.’s house, Grimshaw and T.G. briefly hung out on the couch before T.G. gave Grimshaw a pillow and blanket and went upstairs to go to bed. At 6:27 a.m., Grimshaw, who was still on the couch downstairs, texted T.G., "Goodnight beautiful." T.G. responded "Goodnight love" before Grimshaw texted back, "Goodnight darlin can I come cuddle with you? I mean if it's not to [sic] much." T.G. testified she did not respond because she had already fallen asleep.

¶7 The parties disagree about what happened next; however, it is undisputed Grimshaw and T.G. had sex. At trial, T.G. testified the first thing she remembered upon waking up was Grimshaw pulling down her pants and penetrating her anus with his penis. T.G. told Grimshaw "no," before Grimshaw flipped her over and penetrated her vagina with his penis. T.G. testified she did not say anything after that because Grimshaw pinned her to the bed with his hand around her throat while he had sex with her. T.G. testified she blacked out for a moment and regained consciousness as Grimshaw grabbed the back of her head and put his penis in her mouth. T.G. immediately took Grimshaw's penis out of her mouth and the two said nothing to each other. Grimshaw then passed out. After Grimshaw passed out, T.G. gathered her clothes and went downstairs where she fell asleep on the couch. T.G. awoke to Grimshaw coming down the stairs. Grimshaw said he was going outside to smoke a cigarette and left the house.

¶8 After he left, Grimshaw texted T.G. and the two had the following text message exchange:

Grimshaw: I'm sorry about last night. I love you darling. I know you probably never want to talk to me after what happen.

T.G.: It's ok, I love you to. Where did you go?

Grimshaw: I feel like i had to leave

T.G.: Um ok.

Grimshaw: So I started walking home

T.G.:

Grimshaw: Do you hate me?

T.G.: Did I say that?

Grimshaw: Just making sure.

T.G.: Fucked up though.

Grimshaw: I feel ya

T.G.: Yep.

Grimshaw: I'm still hella drunk

T.G.: Jeez

Grimshaw: Yeah I love you.

T.G.: I love ya to.

T.G. testified it was "[f]ucked up" both because they were cousins and because Grimshaw had raped her.

¶9 T.G. did not immediately report the rape. She testified she was scared, uneasy, and unsure what to do because Grimshaw was family and her best friend. On November 21, 2016, T.G. went to the hospital due to a migraine headache. While at the hospital, T.G. told her mother about the rape and was examined by a sexual assault nurse. At the hospital, T.G. told the nurse and a responding police officer what happened with Grimshaw on the morning of November 11. A few days later, T.G. was interviewed by Detective Noah Scott at the Great Falls Police Department where she told him the story of what happened on the morning of November 11.

¶10 Grimshaw's account of the events of November 11 differed from T.G.’s during an interview he gave to Detective Scott and Detective Adam Price of the Great Falls Police Department on November 28, 2016. Grimshaw first told the detectives he blacked out from drinking on the night of the incident and remembered little, but could have had sex with T.G. After Detective Scott showed Grimshaw pictures of the text conversation between Grimshaw and T.G., Grimshaw stated he apologized to T.G. after she told him they had sex, but he had no recollection of having sex with T.G. Grimshaw told the detectives "it might have been a little, kind of, rape deal." He told the detectives all he remembered was going up to cuddle with T.G. in her bed. He said she was awake but intoxicated. He said the next thing he remembered was waking up alone in T.G.’s bed, and he realized what happened because his clothes were scattered everywhere. Grimshaw said he went downstairs, woke T.G. up, apologized for having sex with her, and left.

¶11 When asked by the detectives what, looking back, he felt the incident was, Grimshaw responded "Rape. I mean ... yeah, I did something that she didn't want, and I did it forcibly." After this statement, Grimshaw told the detectives he was going to be truthful and he did remember a lot of what happened that night. He said he remembered going upstairs to cuddle with T.G. in her bed, starting to feel her up, being felt up by T.G., and then having sex. Grimshaw said he thought T.G. wanted to have sex with him at the time and he did not forcibly remove her clothes or have sex with her while she was not awake. Grimshaw said he realized after the fact that T.G. did not want to have sex, as she had previously told him they "could never be anything, could never do anything" because they were cousins. Grimshaw was arrested at the end of this interview and charged with one count of sexual intercourse without consent.

¶12 Before the first trial setting, the State filed a Notice of Expert Witness and indicated Dr. Sheri Vanino would "testify as to the behavior(s) of rape victims, including but not limited to the actions of rape victims after being raped, such as delayed disclosures and continued contact with the perpetrator following the rape[.]" After receiving this notice, Grimshaw moved to continue the trial so he could find a rebuttal expert witness to testify at trial, which the District Court granted. Grimshaw thereafter filed a Notice of Rebuttal Expert Witness, indicating Dr. Bowman Smelko would "testify in rebuttal on the same topics as the State's expert[.]"

¶13 The matter went to trial in September 2017. Grimshaw contended at trial that the sex was consensual and T.G. falsely accused him of rape because she was ashamed about having sex with her cousin. After Detective Scott, sexual assault nurse Jessica Bray, T.G., and Angela Grimshaw testified, the State called Dr. Vanino. Dr. Vanino testified as a "blind expert"—testifying generally to behaviors exhibited by victims of sexual assault including delays in disclosure, not specifically to the facts of the present case. While testifying to these behaviors, Dr. Vanino stated one of the popular misconceptions was "that women tend to run around and falsely accuse people of rape, or cry rape all the time, which is really not supported. And so, most women don't report." Counsel for Grimshaw objected to Dr. Vanino "talking about statistics or what's common or what's not common on false reports," arguing such testimony was barred by State v. Brodniak , 221 Mont. 212, 718 P.2d 322 (1986). The District Court overruled Grimshaw's objection, finding that as long as Dr. Vanino's "comments are with regard to the myths, I'll allow the witness to testify."

¶14 Dr. Vanino continued testifying about the misconceptions surrounding false reports and then the State asked a question about what the research supports regarding delayed disclosures. Before answering the State's question, Dr. Vanino expressed she was confused about whether she was allowed to talk about statistics. Grimshaw reiterated his objection to testimony about statistics pursuant to Brodniak and M. R. Evid. 702. The District Court again overruled Grimshaw's objection, noting Grimshaw had a rebuttal expert and the issue would "come[ ] down to a battle of the experts[.]" Dr. Vanino then testified only 16 to 20 percent of sexual assault survivors ever tell anyone. On cross-examination, Dr. Vanino testified about 19 percent of sexual assault victims fight back and again that only 16 to 20 percent of victims report. On re-direct, the State asked...