State v. Hildreth
| Decision Date | 08 December 1994 |
| Docket Number | No. 94-025,94-025 |
| Citation | 267 Mont. 423,884 P.2d 771 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Grant HILDRETH, Defendant and Appellant. |
| Court | Montana Supreme Court |
Michael Donahoe, Helena, for appellant.
Joseph P. Mazurek, Atty. Gen., Pamela P. Collins, Asst. Atty. Gen., Helena, Thomas R. Scott, County Atty., Calvin J. Erb, Deputy, Dillon, for respondent.
This is an appeal from a jury verdict from the Fifth Judicial District, Beaverhead County, finding appellant Grant Hildreth guilty of sexual assault, a felony, in violation of § 45-5-502, MCA. Hildreth appeals his conviction and the District Court's denial of a motion for new trial. We affirm.
Hildreth raises several issues on appeal, which we consolidate and restate as follows:
1. Did the District Court err by failing to hold an omnibus hearing?
2. Did the District Court err in instructing the jury that the State was not required to establish the date of the offense with exact precision?
3. Did the District Court err by allowing the State to call certain rebuttal witnesses?
4. Did the District Court err by denying Hildreth's motion in limine in the presence of the jury?
5. Did Hildreth receive ineffective assistance of counsel?
6. Is Hildreth entitled to a new trial based on the State's attempt to offer inadmissible hearsay evidence?
7. Is Hildreth entitled to a new trial based on the doctrine of cumulative error?
In the fall of 1989, in an effort to improve her algebra grades, K.D. began tutoring sessions with her cousin, Grant Hildreth. At the time, K.D. was a fifteen-year-old high school sophomore and Hildreth was a 26-year-old attending college. The weekly tutoring/study sessions began in early October 1989. The sessions were held in the evenings at the college Hildreth attended.
The night before K.D.'s Chapter Four algebra test, on or about November 16, 1989, Hildreth picked up K.D., and they drove to the college and studied from approximately 8 p.m. to approximately 9:30 p.m. At about 9:30 p.m., Hildreth left the study room to get a drink. When he did not return, K.D. went down the hall to look for him.
K.D. testified at trial that she found Hildreth down the hall, and that he then asked to give her a back rub. K.D. said that she was hesitant and Hildreth grabbed her arm. K.D. does not remember how she got to the floor, only that she was lying face down on the floor with Hildreth rubbing her back. K.D. testified that Hildreth then lifted her shirt over her head and attempted to undo her bra. They struggled over the bra. Holding her down with his hand, Hildreth succeeded in removing her bra and, while sitting on her back, pulled off her pants. K.D. testified that after throwing her clothing into a hallway, Hildreth then undid his pants and began moving his penis up and down on top of her, eventually ejaculating on her buttocks.
K.D. testified that later, after Hildreth drove her home, she washed, but was too embarrassed to tell her parents. At trial, K.D. testified that Hildreth later apologized and suggested that she go to her bishop and repent because he had gone to his bishop and talked to him about what happened.
In August of 1990, K.D.'s parents learned of the incident through two letters written by K.D. which her father inadvertently found in her room. The letters described what was going on in K.D.'s life, and what Hildreth was doing to her. During trial, K.D. testified about several other incidents where Hildreth had subjected her to similar sexual assaults.
After initially thinking that the situation could be handled by the family or through a Latter Day Saints church procedure, K.D.'s parents eventually went to the authorities. Hildreth was charged, by information dated July 9, 1991, with sexual assault, a felony. A two-day trial was held in which Hildreth raised an alibi defense, saying he was attending his own birthday party on November 16, 1989. At the close of trial, the jury returned a guilty verdict on the felony sexual assault charge. The District Court deferred imposition of sentence for six years upon certain terms and conditions. Execution of sentence was stayed pending Hildreth's motion for a new trial. The court denied the motion, and the stay of execution was vacated.
Did the District Court err by failing to hold an omnibus hearing?
Pursuant to § 46-13-110(1), MCA, an omnibus hearing must be held in criminal cases at least 30 days before trial. In this case, no omnibus hearing was held. Hildreth claims that this was prejudicial error since: defense counsel was given 20 days instead of 30 days notice that the State intended to introduce "other bad acts" evidence; defense counsel did not have an opportunity to argue that evidence of K.D.'s prior sexual misconduct should be admitted; and the defense was surprised by the State's attempt to introduce certain physical evidence.
On appeal, this Court will not reverse the district court unless the record shows that the error was prejudicial. See § 46-20-701(1), MCA. We hold that Hildreth was not prejudiced by the lack of an omnibus hearing.
First, Hildreth notes that one of the purposes of an omnibus hearing is to discuss the use of other bad acts evidence. See § 46-13-110(3)(h), MCA. The other acts in question were the other sexual assaults which K.D. claimed Hildreth committed. Hildreth claims that he was prejudiced because without the omnibus hearing, he did not have 30 days to prepare for the use of other bad acts evidence. Hildreth's claim of prejudice is unpersuasive since the State gave Hildreth notice of its intent to use other bad acts evidence pursuant to the demands of State v. Just (1979), 184 Mont. 262, 273, 602 P.2d 957, 963; as modified by State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52, 56. The State gave Hildreth this Just notice 20 days before trial. Thus, Hildreth had 20 days to prepare for the use of the evidence. We hold that, even without the omnibus hearing, Hildreth had ample notice of the State's intention to use other bad acts evidence, and opportunity to prepare for such evidence.
Next, Hildreth claims that the lack of an omnibus hearing deprived him of the opportunity to argue that evidence of K.D.'s sexual misconduct should have been admitted. Montana's rape shield law only allows testimony regarding the victim's prior sexual conduct when the prior sexual activity was with the offender, or to show the origin of semen, pregnancy, or disease when it is at issue in the prosecution. See § 45-5-511(2), MCA. Hildreth contends that counsel could have argued that the statute is unconstitutional as it abridges the Sixth Amendment right to confront witnesses.
This Court has recognized that there may be instances where the defense can question the victim about prior sexual accusations. State v. Van Pelt (1991), 247 Mont. 99, 104, 805 P.2d 549, 552-53. In Van Pelt, this Court recognized that a defendant could cross-examine the victim where there was evidence of prior accusations which have been adjudicated as false. Van Pelt, 805 P.2d at 552-53. Prior accusations which have not been adjudicated as false will not be admitted, so as to preserve the integrity of the trial; this limitation is not an infringement upon a defendant's right of confrontation. Van Pelt, 805 P.2d at 552-53; citing State v. Anderson (1984), 211 Mont. 272, 284-85, 686 P.2d 193, 200. The Van Pelt exception to the rape shield law does not apply here. Hildreth does not claim that K.D. made accusations that had been adjudicated as false before his trial. Thus, Hildreth was not prejudiced by being unable to make this argument at an omnibus hearing.
Finally, Hildreth asserts that he was prejudiced because he was surprised at trial by the State's attempt to introduce into evidence some of K.D.'s clothing. At trial, Hildreth objected because the State failed to produce this evidence prior to trial. The court sustained this objection, and the physical evidence was excluded. We hold that Hildreth was not prejudiced by the lack of an omnibus hearing.
Did the District Court err by instructing the jury that the State was not required to establish the date of the offense with exact precision?
At trial, Hildreth offered as an alibi his contention that on November 16, 1989, he was attending his own birthday party held one day after his actual birthday. The District Court gave the following jury instruction:
You are instructed that when the alleged victim for the offense is a child, the State is not required to establish the date of the alleged offense with exact precision. It is sufficient that the State has proved that on or about the 16th day of November, 1989, the alleged offense was in fact committed.
Hildreth argues that the District Court effectively amended the charge against him by giving the challenged instruction. Hildreth points to the State's affidavit for leave to file an information which states that the offense occurred on November 16, 1989, rather than on or about November 16, 1989. However, the information filed against him states that the offense occurred on or about November 16, 1989. The information itself, not the affidavit supporting leave to file an information, is the charging document. See §§ 46-11-101 and 46-11-102, MCA. The court's instruction did not amend the information as to the approximate date of the offense; rather it mirrored it. We hold that the District Court did not amend the charge against Hildreth by giving the disputed instruction.
Next, Hildreth argues that the District Court impermissibly undermined his alibi defense by giving the challenged instruction. We previously examined whether time becomes a material element of the offense charged when the defendant raises an alibi defense. See State v. Shaver (1988), 233 Mont. 438, 760 P.2d 1230. In Shaver, the defendant planned to rely on an alibi defense. There was a...
To continue reading
Request your trial
-
State v. Morrisey
...§ 1-2-101, MCA. The State also cited State v. Weitzel, 2000 MT 86, ¶¶ 31-32, 299 Mont. 192, 998 P.2d 1154, and State v. Hildreth, 267 Mont. 423, 430, 884 P.2d 771, 775-76 (1994), for the proposition that the prosecution is not required by § 46-15-322(6), MCA, to provide notice of a witness ......
-
State v. Dewitz
...307, 325 (1994)). We will not presume prejudice from claims of prosecutorial misconduct. Soraich, ¶ 20 (citing State v. Hildreth, 267 Mont. 423, 433, 884 P.2d 771, 778 (1994)). ¶ 93 In the instant case, we conclude that the prosecutor's comments were not so egregious as to deprive Dewitz of......
-
Adams v. State
...ineffective assistance of counsel if the objection lacked merit and would have been properly overruled. State v. Hildreth, 267 Mont. 423, 432-33, 884 P.2d 771, 777 (1994) (citing State v. Rodgers, 257 Mont. 413, 421, 849 P.2d 1028, 1033 (1993)). An objection to the introduction of the jury ......
-
State v. Allum, 04-188.
...This Court will not reverse a conviction for failure to hold an omnibus hearing without a showing of prejudice. State v. Hildreth (1994), 267 Mont. 423, 427, 884 P.2d 771, 774. Allum has not demonstrated any prejudice regarding the lack of an omnibus ISSUE SEVEN ¶ 41 Whether the District Co......