State v. LaFournaise

Decision Date22 February 2022
Docket NumberDA 19-0453
Parties STATE of Montana, Plaintiff and Appellee, v. Toston Gray LAFOURNAISE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright (argued), Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar (argued), Katie F. Schulz, Assistant Attorneys General, Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Katie Jerstad, Deputy County Attorney, Helena, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 After a three-day trial, a jury convicted Toston Gray LaFournaise of sexual intercourse without consent (SIWOC), a felony, in violation of § 45-5-503(1), MCA ; tampering with witnesses and informants, a felony, in violation of § 45-7-206(1)(b), MCA ; privacy in communications, a misdemeanor, in violation of § 45-8-213(1)(a), MCA ; and stalking, a misdemeanor, in violation of § 45-5-220, MCA. LaFournaise appeals.

¶2 We affirm and restate the issues as follows:

1. Whether the District Court abused its discretion by allowing the State to file a Third Amended Information mid-trial.
2. Whether the District Court's jury instruction on consent warrants reversal for plain error.

¶3 LaFournaise began sexually harassing S.S. in 2013 when she was in the sixth grade at East Valley Middle School (EVMS). Due to his ongoing and unwanted contact and sexual advances, S.S. and her parents met with school administrators which resulted in LaFournaise being suspended on several occasions. His behavior persisted, however, and in the fall of 2015, when he was fourteen, LaFournaise rode up on his bicycle to S.S. as she was walking home from volleyball practice and pushed her down, telling her he was going to hurt her. LaFournaise pulled S.S.’s shorts down and pinned her arms above her head. He took his shorts down and, using his knees to pry her legs apart, inserted his penis into her vagina. After raping her, LaFournaise cut S.S.’s thigh with a knife and warned her that, "If you tell anyone, I'll kill you." S.S. did not report the rape because she believed LaFournaise would kill her.

¶4 During the summer of 2016, LaFournaise repeatedly called S.S., causing her to block his calls on her phone. S.S. also transferred to Jefferson County High School so she could avoid LaFournaise; however, she told her mother it was because she wanted to attend a smaller school. On March 1, 2017, S.S. received a call from LaFournaise on her new phone; she had not blocked LaFournaise's number on the new phone because she did not have the number. LaFournaise told S.S. he planned to rape her again and impregnate her. S.S. was terrified. Following the phone call, S.S. sought a temporary restraining order against LaFournaise. Law enforcement learned S.S. had disclosed being raped by LaFournaise to her therapist and school counselor. Based on this information, law enforcement set up a forensic interview with S.S. and she underwent medical testing.

¶5 The State's first Information in May 2018 charged LaFournaise with SIWOC, in violation of § 45-5-503(1), MCA (Count I), privacy in communications, in violation of § 45-8-213(1)(a), MCA, and stalking, in violation of § 45-5-220, MCA. In February 2019, the State moved to amend the Information. The State's First Amended Information amended Count I to include § 45-5-503(3)(a), MCA, after the State learned LaFournaise slashed S.S.’s leg with a knife. The State further added one charge of tampering with witnesses, in violation of § 45-7-206(1)(b), MCA (Count II), after learning that LaFournaise threatened to kill S.S. if she disclosed the rape. The First Amended Information retained the privacy in communications (Count III) and stalking charges (Count IV). Approximately one week after the First Amended Information, the State again sought leave to amend the Information. The State's Second Amended Information amended Count I to aggravated SIWOC, in violation of § 45-5-508, MCA, and retained Counts II-IV.1 LaFournaise was arraigned on the Second Amended Information and trial began on March 18, 2019.

¶6 At trial, LaFournaise's opening argument framed LaFournaise's conduct as an innocent crush, to which S.S. overreacted. Defense counsel argued the impossibility of LaFournaise having access to S.S. because of how far away LaFournaise lived and his lack of transportation. The State's case-in-chief consisted of testimony from the following witnesses: Sergeant Uriah Wood of the Lewis and Clark County Sheriff's Office; S.S.; Joseph Michaud, S.S.’s counselor at high school; Kevin VanNice, S.S.’s counselor at EVMS; Dr. Callie Riggin, who performed a post-disclosure medical examination on S.S.; S.S.’s mother; Detective William Pandis of the Lewis and Clark County Sheriff's Office; and Dr. Wendy Dutton, testifying as a blind expert on sexual violence.

¶7 S.S. testified to persistent, unwelcome sexual harassment by LaFournaise starting during her sixth grade year at EVMS. LaFournaise's advances toward S.S. culminated in August 2015, her eighth grade year at EVMS. S.S. testified that, as she was walking home from volleyball practice at EVMS, LaFournaise rode up on a bicycle, grabbed her, threw her to the ground, and "put his penis inside of [her]." S.S. testified that she never consented to LaFournaise's actions, and she believed LaFournaise would kill her if she disclosed the incident. S.S. additionally testified to how the 2015 incident negatively impacted her grades and that LaFournaise's sexual harassment caused her to self-harm. LaFournaise's cross-examination of S.S. focused primarily on inconsistencies between S.S.’s trauma narrative completed during the forensic interview and her trial testimony.

¶8 At the end of the first day of trial, the District Court raised concerns over Count I and the effective date of § 45-5-508, MCA :

My reading of the statute is that that statute became effective October 1st, 2017, and it applies to crimes committed on or after the effective date of the act. That's my interpretation of the legislative research, so anticipate a directed motion for directed verdict. I would like that addressed.
I heard testimony today and even in the Information that it alleges the act of aggravated sexual intercourse without consent. It was committed at the end of August 2015 or until early September 2015. I have no act to-date after October 1st, 2017. So I expect -- I would like that addressed.

The State filed a bench brief presenting the District Court with the following options: (1) grant LaFournaise's motion for a directed verdict respecting Count I and allow the jury to deliberate on Counts II-IV, (2) permit the State to amend back to and proceed under the First Amended Information alleging SIWOC in violation of § 45-5-503(1) and (3)(a), MCA, or (3) allow the State to amend the Second Amended Information as to form by reducing Count I from aggravated SIWOC under § 45-5-508, MCA, to SIWOC, in violation of § 45-5-503(1) and (3)(a), MCA.

¶9 The District Court allowed the State to argue these options at the beginning of the second day of trial. The State noted amendments as to substance must come five days before trial. The State argued, under § 46-11-205(3), MCA, an Information may be amended at any time before a verdict is issued if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. The State contended amending Count I to SIWOC under § 45-5-503(1) and (3)(a), MCA, constituted a lesser included offense of aggravated SIWOC under § 45-5-508, MCA. The District Court questioned the State on how there could be a lesser included offense to an invalid charge and clarified that LaFournaise had been arraigned on each information, including the first Information charging SIWOC in violation of § 45-5-503(1) and the First Amended Information charging SIWOC in violation of § 45-5-503(1) and (3)(a), MCA. Defense counsel objected, contending "[LaFournaise is] charged with aggravated sexual intercourse without consent, and that is how we have structured our defense." Defense counsel further argued an amendment would prejudice LaFournaise and LaFournaise "has the right to be told what he is charged with and what the penalties are." Defense counsel additionally expressed concerns over jury confusion should the State amend Count I. The District Court recognized LaFournaise's strategy but responded its "job is to make sure that each party has a fair trial."

¶10 The District Court ruled it would not allow the State to amend Count I to § 45-5-503(3)(a), MCA, "because the proof that was adduced in the testimony would establish bodily injury well above and beyond that anticipated by the defense ... [and] it prejudices the defendant with respect to his defense." The District Court ruled that Count I charging aggravated SIWOC under § 45-5-508, MCA, "is gone. ... [and] an invalid charge because that statute was enacted October 1st, 2017, and it applies to crimes that occurred on or after that date." Ultimately, the District Court determined the State could amend Count I to § 45-5-503(1), MCA, noting "the elements of the crime and the proof required remain the same, and the defendant is informed of the charges against him." Thus, the State filed a Third Amended Information, amending Count I to SIWOC, in violation of § 45-5-503(1), MCA, and retaining Counts II-IV.

¶11 After the District Court's ruling, LaFournaise testified on his own behalf. He testified to having a crush on S.S. and asking her out repeatedly, but claimed the crush only lasted until he graduated eighth grade. He admitted slapping S.S.’s buttocks without her consent and attempting to kiss her, which he characterized on cross-examination as being done in an "aggressive manner" and as an "urge." He further admitted to calling S.S. on occasion but claimed the calls were innocent in nature. LaFournaise also...

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