State v. Hansen

Citation409 Mont. 495,515 P.3d 799
Decision Date16 August 2022
Docket NumberDA 19-0614
Parties STATE of Montana, Plaintiff and Appellee, v. Gary HANSEN, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

For Appellant: Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Joshua Racki, Cascade County Attorney, Jennifer Quick, Amanda Lofink, Deputy County Attorneys, Great Falls, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant Gary Hansen appeals the August 30, 2019 Sentencing Order and Judgment following his conviction in the Eighth Judicial District Court, Cascade County, of Count I: Incest, a felony, in violation of § 45-5-507, MCA. We affirm and restate the issue on appeal as follows:

Whether the District Court erred excluding evidence of the complaining witness's prior statements regarding an alleged "false accusation" of sexual assault.
PROCEDURAL AND FACTUAL BACKGROUND

¶2 Hansen was accused of committing incest against his granddaughter, K.O. The State charged Hansen with four counts of incest and one count of obstructing a peace officer. The State amended the charge to felony sexual assault before trial. At the June 2015 trial, Hansen pled "no contest." This Court reversed, holding that the district court erred by accepting Hansen's "no contest" plea to a sexual offense, and remanded for a trial. State v. Hansen , 2017 MT 280, 389 Mont. 299, 405 P.3d 625 (overruled in Gardipee v. Salmonsen , 2021 MT 115, ¶ 10, 404 Mont. 144, 486 P.3d 689 to the extent it failed to "distinguish between an illegal sentence and an invalid plea").

¶3 The State reinstated the original charges in 2017 and eventually amended the Information to one count of incest. Prior to trial, the State sought to exclude evidence that K.O. had made two prior allegations of sexual assault. In a 2013 forensic interview, when K.O. was eight years old, she discussed involvement with her male cousin, A.G.H., when they were both about five years old. In 2018, K.O. disclosed to a female cousin that she was in a sexual relationship with her mother's then boyfriend, Francisco Medina.

¶4 The District Court held an evidentiary hearing on January 9, 2019, pursuant to State ex rel. Mazurek v. Dist. Ct. of the Mont. Fourth Judicial Dist. , 277 Mont. 349, 922 P.2d 474 (1996), receiving testimony from K.O., A.G.H., Medina, and others. The video of the 2013 forensic interview was also entered into evidence. The District Court ruled that K.O.’s accusation about Medina was admissible, but K.O.’s statements regarding A.G.H. were not admissible because there was not "adequate evidence presented to prove that an allegation was made or that it was false."

¶5 In May 2019, a five-day jury trial convened. The jury convicted Hansen of incest and the court sentenced him to the Montana State Prison for a 100-year sentence, with 50 years suspended, and a 10-year parole restriction.

¶6 The facts underlying Hansen's conviction are as follows: Hansen's biological granddaughter, K.O., disclosed in 2013 that Hansen had been sexually assaulting her since she was approximately three years old. Her earliest memory of the abuse involved "playing a game" in Hansen's living room with all the lights off where she would attempt to turn off the T.V. Hansen made K.O. play this game naked, and afterwards would sexually assault her. For several years, Hansen would sexually abuse K.O. in various rooms throughout his home and in his vehicle. Hansen threatened K.O., telling her that if she told anyone about the abuse he would go to jail. K.O. was also worried that if she disclosed the abuse, she would lose her pet bird that lived at Hansen's house.

¶7 In February 2013, K.O. disclosed the abuse to a school counselor, and the matter was referred to law enforcement. Paula Samms, a licensed clinical professional counselor, conducted forensic interviews of K.O., the first one on February 22, 2013, and the second on March 26, 2013. During the February interview, K.O. described that Hansen routinely sexually assaulted her, that it hurt, left her genitals red, and once she thought she was bleeding. K.O. had difficulty describing the incidents, but with the help of a diagram and drawings, she was able to convey where on her body Hansen had touched her. During this interview, the following exchange occurred between K.O. and Samms:

K.O.: My Grandpa told me not to tell anyone [about the abuse].
SAMMS: Okay. So your Grandpa told you not to tell anyone? Did he say something would happen if you told?
K.O.: That he would go to a jail.
SAMMS: He said that he would go to a jail? Okay. Okay. Well, thanks for letting me know that. You know when someone tells you to keep a secret like about hurting you or touching you or something like that, that's an important one to tell, even when you're scared. Did he say anything else would happen if you told?
K.O.: [shakes head]
SAMMS: No? Did you ever tell anyone else besides this lady that you knew from Eastgate? Like a friend or something like that?
K.O.: I told my cousin.
SAMMS: You did?
K.O.: That Grandpa was sleeping with me.
SAMMS: Okay. What's your cousin's name?
K.O.: [A.G.H.]
SAMMS: [A.G.H.] Is [A.G.H.] older than you or younger than you?
K.O.: I don't know ....
...
SAMMS: How old were you when you told [A.G.H.]?
K.O.: Maybe about five.
SAMMS: About five? Did [A.G.H.] say something when you told him?
K.O.: No. He used to do it, too.
SAMMS: He used to do it, too? Tell me what you mean.
K.O.: He used to do what Grandpa did, but he didn't say anything.
SAMMS: So ....
K.O.: And my Grandma June found out ... every time we get caught, he's the one that asks me.
SAMMS: Okay. So help me understand. You said, "[A.G.H.] used to do it, too?" Like somebody was doing it to him, or he was doing it to someone else, or ....
K.O.: He was doing it to me.
SAMMS: To you. Okay. And then you said, "Every time you got caught ...." Tell me what you mean by that.
K.O.: They were asking me why I did it whenever I didn't.
SAMMS: Oh. Who was asking you that?
K.O.: Um [long pause]. What I said I meant by that is that [long pause] ....
SAMMS: Who was it that would catch you?
K.O.: My Grandma June.

¶8 At the evidentiary hearing in January 2019, A.G.H. and K.O. testified regarding the statements K.O. made during the February 2013 forensic interview. A.G.H. testified that he never sexually assaulted or had sexual intercourse with K.O., but they had consensually played "doctor" as children where he touched "maybe her stomach area" and "maybe her chest." K.O. testified, "We both used to play doctor all the time because of the fact ... I wanted to be a doctor, and I don't remember exactly, but I think he did too. Nothing sexual ever happened." When asked to clarify her statement during the interview that A.G.H. "did things like what Grandpa did," K.O. replied, "I didn't know what intercourse was at that time. I didn't know that that was not intercourse." Upon being asked, "So you thought that the things A.G.H. did were the same things that your grandfather did?" K.O. responded, "Yes. But I no longer think that."

¶9 At trial, K.O. testified in detail about the abuse she experienced at the hands of her grandfather. K.O. described the "game" where Hansen made her run around in the dark living room naked and afterwards, he would touch her vagina. She described that Hansen repeatedly touched her vagina, both over and under her clothes, and that the abuse happened "more than 50 times." She described where the abuse occurred in Hansen's home, and an incident that occurred in Hansen's truck. K.O. testified, "I was being basically dry humped," meaning Hansen rubbed his penis on K.O. while she sat on his lap. She described Hansen's threat, "Don't say anything or I'll get in trouble." She testified that although she did not remember Hansen raping her, she did remember reporting the incident during the February 2013 forensic interview ("I just remember saying it. I don't remember the actual story."). She also testified that during the February 2013 forensic interview, "I was being as honest as I possibly could."

STANDARDS OF REVIEW

¶10 We review evidentiary rulings for an abuse of discretion, which occurs "when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice." State v. Daffin , 2017 MT 76, ¶ 12, 387 Mont. 154, 392 P.3d 150. To the extent a court's evidentiary ruling is based on an interpretation of a constitutional right, our review is de novo. State v. Hoff , 2016 MT 244, ¶ 11, 385 Mont. 85, 385 P.3d 945 (citing State v. Patterson , 2012 MT 282, ¶ 10, 367 Mont. 186, 291 P.3d 556 ).

DISCUSSION

Whether the District Court erred excluding evidence of the complaining witness's prior statements regarding an alleged "false accusation" of sexual assault.

¶11 The Due Process Clause of the Fourteenth Amendment and the Compulsory Process and Confrontation clauses of the Sixth Amendment "guarantee[ ] criminal defendants ‘a meaningful opportunity to present a complete defense.’ " State v. Jay , 2013 MT 79, ¶ 32, 369 Mont. 332, 298 P.3d 396 (quoting Holmes v. S.C. , 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L.Ed.2d 503 (2006) ). While states have broad latitude to establish rules excluding evidence from criminal trials, courts should avoid rules of evidence that abrogate the rights of a criminal defendant—those that "infring[e] upon a weighty interest of the accused" and are "arbitrary" or "disproportionate to the purposes they are designed to serve." United States v. Scheffer , 523 U.S. 303, 308, 118 S. Ct. 1261, 1264, 140 L.Ed.2d 413 (1998) ; Holmes , 547 U.S. at 324, 125 S. Ct. at 1731.

¶12 One such rule of evidence is Montana's rape shield statute, which provides that "[e]vidence concerning the sexual conduct of the victim is inadmissible" unless it is evidence of the...

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    • Montana Supreme Court
    • October 25, 2022
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