State v. Howard
| Decision Date | 01 November 2011 |
| Docket Number | No. DA 10–0542.,DA 10–0542. |
| Citation | 265 P.3d 606,362 Mont. 196,2011 MT 246 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Harley HOWARD, Defendant and Appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Joseph C. Engel, III.; Great Falls, Montana.
For Appellee: Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney; Carolyn Clemens, Tara A. Harris, Deputy County Attorneys; Helena, Montana.
[362 Mont. 197] ¶ 1 On September 24, 2009, the State charged Harley Howard (Howard) with Incest (common scheme) for acts he allegedly committed against his daughter, D.H., from 2003 to 2005, when she was between six and eight years old. Following a jury trial in the First Judicial District Court, Lewis and Clark County, Howard was convicted of the charge on December 17, 2009. The District Court sentenced Howard to forty years in Montana State Prison with twenty years suspended. He appeals his conviction and his sentence. We consider the following issues on appeal:
¶ 2 1. Whether Howard was denied effective assistance of counsel when his attorney did not challenge the competency of the State's two child witnesses or the admission of their hearsay statements.
¶ 3 2. Whether the District Court's imposition of sentence improperly considered Howard's claim of innocence.
¶ 4 Howard and Rebecca Chapman married in 1995. In 1997, they had a daughter, D.H., and in 1998 a son, C.H. Between 1999 and 2004, Howard and Chapman separated and attempted reconciliation several times, but ultimately decided to divorce. The children stayed primarily with Howard in Helena, while Chapman moved to Butte to—according to her daughter—“look for a new family.” In 2003, Chapman filed a motion with the Second Judicial District Court in Butte seeking to have the children reside primarily with her. In December 2003, the court issued a parenting plan to that effect with Howard receiving parenting time approximately every other weekend. That arrangement continued for several years.
¶ 5 In 2006 Howard moved to Butte and remarried. The family's situation remained somewhat tumultuous, with Chapman appearing at Howard's residence while intoxicated and punching him, then later seeking alcohol treatment. In July 2007, an Amended Parenting Plan was entered, directing that the children remain primarily with Howard and allowing Chapman parenting time on alternating weekends.
¶ 6 In 2008, Chapman moved to Missoula. On June 15 of that year, D.H. and C.H. went to Missoula for Chapman's parenting time. Sarah Vandermuelen, Chapman's sister, was watching the children when D.H. disclosed to Vandermuelen that her father had molested her in the past. Vandermuelen told Chapman of the disclosure and Chapman reported the incident to Child and Family Services.
¶ 7 In response to the allegations, a video recorded interview of D.H. was conducted by pediatric nurse practitioner Mary Pat Hansen of First Step Resources Center. D.H. told Hansen the assaults began when she was about six years old and lasted until she was nearly nine years old. D.H. described specific instances in which Howard would take D.H. into his bedroom and perform sexual acts. Howard would make her take off her clothes and then rub his naked body and his “private part” on D.H. She explained white stuff would come out which Howard wiped away with a sock. D.H. related additional details of Howard's assaults, explaining that she hated performing these acts even though her father said, “you know you like it.” D.H. stated one day she told Howard, “I'm too old for this,” after which time he stopped the assaultive behavior.
¶ 8 Randi M. Hood and Jon Moog represented Howard at his four-day jury trial. D.H. testified for the State and tearfully recounted several instances of sexual assault by Howard. The State questioned D.H. about statements she made during the recorded interview with Hansen. She admitted some of what she told Hansen was not true, including what Howard's semen smelled like, that she kept a journal, and that she once saw Howard masturbate with her purple coat. D.H. explained she could not accurately describe the smell, she did not have a journal, and she had only seen Howard lying on his bed with her purple coat but nothing more. After recanting those previous statements, D.H. confirmed everything else she said had been the truth. D.H. stated she did not want to testify in court and she did not want to get her father in trouble because she loved him and missed him. At the end of the State's direct exam, D.H. offered the following testimony:
¶ 9 On cross-examination, Hood questioned D.H. about various living arrangements between her parents and elicited an admission from D.H. that when Hansen interviewed her, “what I was thinking was my mom was trying to get custody of me again.” D.H. also admitted she “exaggerated a lot” when she talked to Hansen. However, D.H. clarified, “I don't try to tell lies about my dad so my mom can get her way.”
¶ 10 Hansen testified she interviewed D.H. on July 2, 2008. She stated, based on her training and experience, D.H.'s disclosure was consistent with a child who had experienced sexual abuse. Hansen based this determination, in part, on the fact that D.H. could describe the events with great detail. On cross-examination, Hood informed Hansen D.H. had admitted to the jury she had lied about several things she told Hansen. When Hood asked if that admission would affect Hansen's assessment, she replied it would not. The State then offered the recorded interview into evidence. Hood objected, arguing the video gave “undue highlight to a portion of the evidence.” The District Court overruled the objection and the video was shown to the jury.
¶ 11 D.H.'s eleven-year-old brother, C.H., also testified at trial. He stated he once was in the hallway of the apartment when he opened the door to his father's bedroom and saw Howard at the end of the bed, exposing his penis and buttocks in front of D.H. Both the State and Hood questioned C.H. more specifically about what he observed; however, he indicated it was difficult to recall exactly what occurred so long ago.
¶ 12 The State called several witnesses who provided their professional opinions as to the children's mental health. Rebecca Weston, a Child and Adolescent Psychotherapist, testified she began seeing D.H. for therapy in January, 2009. Weston said she gave D.H. a provisional diagnosis of Post Traumatic Stress Disorder (PTSD), which she described as an anxiety disorder experienced by people who have suffered very significant trauma. Weston stated, in her opinion, D.H.'s symptoms and physical manifestations were consistent with a child who had been sexually abused.
¶ 13 Dr. Melissa Neff, a Licensed Clinical Psychologist, testified she began seeing C.H. in October, 2008. Neff noted C.H. “was pretty articulate” and she was “impressed with how mature he was for a child his age.” Based on her sessions with C.H. and the symptoms she observed, Neff diagnosed C.H. with PTSD. Neff based her assessment of C.H. on his irritability, difficulty with concentration, and what she characterized as “intrusive thoughts” stemming from what he witnessed with his father and D.H.
¶ 14 Kathy Shea is a Licensed Clinical Social Worker who specializes in child sexual abuse cases. Shea testified it is common for children to recant their disclosures because they often do not appreciate the full ramifications of reporting abuse. Shea stated children may later deny they were victimized because they want things to go back to the way they were. On cross-examination, Shea acknowledged she had never met D.H. or C.H. and admitted none of her testimony was based on any of the specific facts of this case. Shea also conceded that false allegations, though rare, do occur, particularly in divorce-related situations.
¶ 15 At the conclusion of trial, the jury convicted Howard of Incest. On April 30, 2010, the court held a lengthy sentencing hearing and heard testimony from several witnesses. Ron Silvers, a sex offender evaluator and clinical therapist, performed an assessment on Howard. Silvers noted Howard's continued denial of the offense made it difficult to evaluate his attitudes, thought processes, and details of the offense. Silvers further explained Howard's rehabilitative potential necessarily involved consideration of Howard's own indication he did not perceive himself to be in need of therapy. Silvers opined that, while offenders who are “deniers” are not good candidates for outpatient treatment, they nevertheless are amenable to other rehabilitative responses. Silvers ultimately recommended Howard receive sex offender treatment and remain in a confined setting, such as house arrest or electronic monitoring, or “[a]t the very least a prerelease center.”
¶ 16 Cathy Murphy, a Probation Officer for the State of Montana, conducted Howard's presentence investigation (PSI) and recommended Howard receive forty years in Montana State Prison with twenty years suspended. Murphy explained she based her ultimate recommendation on the need to treat Howard and to protect the children, given that Howard's youngest son was one year old. Murphy indicated Howard's continued denial did negatively impact the children, but she stated her recommendation was not influenced by Howard maintaining his innocence throughout the trial.
¶ 17 Howard offered a brief statement at the conclusion of the hearing. The District Court then sentenced Howard to forty years in the Montana State Prison with twenty suspended. The court ordered Howard not be parole...
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