State v. Lindberg

• Decision Date: 18 November 2008
• Docket Number: No. DA 06-0040.,DA 06-0040.
• Citation: 2008 MT 389,347 Mont. 76,196 P.3d 1252
• Parties: STATE of Montana, Plaintiff and Appellee, v. Lawrence Rolan LINDBERG, Defendant and Appellant.
• Court: Montana Supreme Court

196 P.3d 1252

2008 MT 389

347 Mont. 76

STATE of Montana, Plaintiff and Appellee, v. Lawrence Rolan LINDBERG, Defendant and Appellant.

No. DA 06-0040.

Supreme Court of Montana.

Submitted on Briefs February 28, 2007.

Decided November 18, 2008.

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For Appellant: Jim Wheelis, Chief Appellate Defender, Kristina Neal, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Lisa A. Adams, Deputy County Attorney, Kalispell, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Lawrence Rolan Lindberg (Lindberg) appeals his conviction on two felony counts of sexual assault, one felony count of sexual intercourse without consent, and one misdemeanor count of sexual assault in the Eleventh Judicial District, Flathead County. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On December 23, 2003, Lindberg was charged with two counts of sexual assault and one count of sexual intercourse without consent. The circumstances leading to these charges are as follows. Lindberg began dating a woman, R.B., in 1995, and moved in with R.B.'s parents in Columbia Falls, Montana. R.B.'s son (B.B.), R.B.'s two daughters, H.B. and A.T., and another teenage boy, V.L., all lived in the home with R.B.'s parents. H.B. was approximately eleven years old at the time, and A.T. was approximately five. Lindberg and R.B. lived in the basement of the home. R.B. had a drinking problem, and she and Lindberg would regularly drink together. At Lindberg's trial H.B. testified that the first night he moved into the house he sexually abused her when she got up to use the bathroom. H.B. claimed that Lindberg directed her into one of the bedrooms and then touched her between her legs with his hands and mouth. H.B. testified that Lindberg continued this course of conduct on a regular, sometimes daily, basis for several years, touching her both under and over her clothing. At the time these incidents were occurring, however, H.B. did not tell anyone about them.

¶ 3 According to A.T.'s trial testimony, Lindberg also committed similar acts against her. A.T. testified that when she was five years old she had been sitting on Lindberg's lap in the basement with him and R.B. watching television. When her mother left the room, Lindberg unbuttoned A.T.'s pants, put his hands down her pants and rubbed her vagina area. A.T. testified that before R.B. came back into the room Lindberg warned her not to tell anyone about the incident or she would be hurt. At the time, A.T. did not tell anyone about the incident. According to her testimony, this was the only sexual act Lindberg committed against her during this time.

¶ 4 Around 1998, Lindberg and R.B. separated for a few years, reuniting sometime in 2000 or 2001. Sometime after Lindberg moved out of the house, A.T. allegedly told some peers about Lindberg's conduct against her, but did not relate this incident to any adults or authority figures. According to trial testimony, H.B. maintained her silence concerning Lindberg's conduct. In 2002, Lindberg and R.B. moved back into the grandparents' home, staying in B.B.'s bedroom instead of the basement, while B.B. stayed in a bed in his grandparents' bedroom. When Lindberg moved back into the home, he was working as a trucker regularly traveling out-of-state. He would be gone for periods ranging from weeks to months, and then return to Columbia Falls for a few weeks at a time. R.B. would accompany him on these trips. H.B. testified that once Lindberg returned to the home, he continued the unwanted sexual contact, grabbing her chest and trying to kiss her. H.B. told Lindberg not to do this, and Lindberg eventually left her alone. However, Lindberg allegedly resumed his sexual conduct against A.T., who was then approximately eleven years old. A.T. testified that Lindberg's sexual conduct against her was not as "bad" as the first instance several years prior, but much more consistent. A.T. claimed that Lindberg would touch and squeeze her breasts and buttocks on many occasions. A.T. testified that she attempted to avoid being alone at the house with Lindberg. A.T. estimated that Lindberg had touched her approximately thirty times during this time period.

¶ 5 A.T. recounted specific instances of the alleged sexual contact to the jury during trial. In one incident, one of A.T.'s friends, a teenage boy named M.T., allegedly witnessed sexual conduct by Lindberg against A.T. A.T. claimed that she was in the bathroom doing her hair when Lindberg grabbed her buttocks. M.T. apparently witnessed the incident and it bothered him to the point that he afterward told A.T. he wanted to "do something" to Lindberg with a baseball bat. However, A.T. persuaded him not to take any action. M.T. testified that he spoke to his mother about this incident after its occurrence.

¶ 6 After these incidents, A.T. told some of her close friends about Lindberg's conduct, but did not go to the authorities or tell any adults. A.T. told V.L., the teenage male who had lived at the house and was a friend to both of the girls, about Lindberg's actions towards her. V.L. apparently urged her to tell her grandmother, but A.T. refused to do so. V.L. did tell H.B. about Lindberg's actions. Upon receiving this information, H.B. then spoke directly to A.T. about the incidents and confirmed them directly with her. H.B. then went to the police in Columbia Falls and told them about Lindberg's conduct only with respect to A.T. The next day, H.B. brought A.T. to the police station to discuss these alleged sexual assaults against her.

¶ 7 The girls were first interviewed by Officer Brandy Arnoux (Officer Arnoux) of the Columbia Falls Police Department on February 2, 2003. In the course of speaking to the girls, Officer Arnoux quickly realized that the grandparents' home was outside the city limits of Columbia Falls, and contacted the Flathead County Sheriff's Office concerning the report. Deputy Bill Emerson (Deputy Emerson) of the Flathead County Sheriff's Office was soon dispatched to assist Officer Arnoux. Detective Lance Norman (Detective Norman) and Detective Jeanne Landis (Detective Landis) also of the Flathead County Sheriff's Office assisted in the investigation as well. Once Deputy Emerson arrived, the girls were given written statement forms to fill out.

¶ 8 In the course of their interview, Officer Arnoux and Deputy Emerson determined there was sufficient information to forward the allegations of sexual conduct against Lindberg to detectives for further investigation. Near the end of the interview with the girls, the officers realized that Lindberg may have committed a sexual crime against H.B. as well. When questioned, H.B. was at first reluctant to talk about the incidents, preferring to focus instead on the abuse against A.T. However, H.B. did eventually speak about the sexual conduct against her. At the end of the interview, Deputy Emerson asked the girls if they had told anyone about the alleged conduct of Lindberg against them. They both responded that they had not.

¶ 9 Detectives Norman and Landis conducted a further investigation of the allegations, and interviewed the girls, their friends, including V.L. and M.T., and family members, including Lindberg and R.B. Immediately after law enforcement officials' interview of Lindberg, a restraining order was issued against him. Based on further investigation, charges were filed against Lindberg on December 23, 2003. The charges were later amended to include a misdemeanor sexual assault charge. The Amended Information alleged that Lindberg committed felony sexual assault between January 1, 1995, and December 31, 1999, and between January 1, 2002, and December 31, 2002, when he knowingly subjected A.T. to sexual contact without her consent. The second count alleged that Lindberg committed the offense of felony sexual assault between January 1, 1995, and December 31, 1999, when he knowingly subjected H.B. to sexual contact without her consent. The felony sexual intercourse without consent charge alleged that Lindberg committed this offense between January 1, 1995, and December 31, 1999, when he knowingly and without consent had sexual intercourse with H.B., who was a minor at the time. Finally, the misdemeanor sexual assault charge alleged that Lindberg committed this offense when he knowingly subjected H.B.—who had then reached the age of sixteen—to sexual contact without her consent. Lindberg requested a jury trial which was later set for July 5, 2005.

¶ 10 Prior to trial, the State filed a motion in limine to exclude any evidence regarding H.B.'s sexual orientation. In preparation for his defense, Lindberg's counsel had conducted an investigation of the events surrounding the allegations against him. These investigations purportedly established that H.B. had been involved in a sexual relationship with a female teenage friend named S.H. during the time of Lindberg's alleged criminal conduct. Lindberg claimed that he and other family members knew about this relationship and had strenuously objected to H.B. about it. As part of the theory of his defense, Lindberg intended to argue that his objection to this relationship provided a motive for H.B. to fabricate the allegations against him in an attempt to have him removed from the home. Lindberg claimed that evidence about the nature of H.B.'s relationship with S.H. was necessary for him to present his defense theory.

¶ 11 The District Court granted the State's motion in limine, concluding that any evidence of the sexual nature of H.B.'s relationship with another female was irrelevant to the issues at trial, and prohibited under Montana's rape shield law, § 45-5-511(2), MCA, and the authority of State v. Johnson, 1998 MT 107, 288 Mont. 513, 958 P.2d 1182. In explaining the reason for its decision, the District Court stated the...