State v. Mikesell
| Decision Date | 09 November 2021 |
| Docket Number | DA 19-0666 |
| Citation | 498 P.3d 192,406 Mont. 205 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Louis W. MIKESELL, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellant Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Stephanie Robles, Ann Penner, Deputy County Attorneys, Helena, Montana
¶1 A jury convicted Louis Mikesell in the First Judicial District Court, Lewis and Clark County, of felony sexual intercourse without consent (SIWC) in violation of § 45-5-503(1), MCA. Mikesell appeals his conviction and presents the following issue for review:
Did trial counsel render ineffective assistance when counsel allowed prior consistent statements from a forensic interview into evidence without challenge?
¶2 We affirm.
¶3 In 2017, the State charged Mikesell with one count of felony SIWC for conduct that occurred between 2012 and 2017.1 The victim, D.T., was between five and ten years old at the time of the offenses and twelve at the time of trial. Mikesell and his wife, Patricia, are D.T.’s grandparents. D.T., her mother Jamie, and her two older brothers moved in with Mikesell and Patricia after Jamie separated from her husband. The family lived in several residences with Mikesell and Patricia.
¶4 Around Easter 2017, D.T. and Jamie went to Jamie's friend's house. D.T. disclosed to Jamie's friend that Mikesell touched her inappropriately. The friend relayed this disclosure to Jamie, who packed the family up and left Mikesell's residence. The following day, police interviewed Jamie while D.T. had a forensic interview with Paula Samms (Samms) of the Child Advocacy Center in Helena. D.T.’s medical exam by Dr. Erin Keefe came back with normal results, which Dr. Keefe testified did not rule out abuse. Mikesell admitted to napping with D.T. in his police interview. When asked whether anything sexual happened while napping, he replied, Mikesell admitted to kissing D.T. on the cheek and "pat[ting her] on the butt." However, he generally denied the allegations and blamed them on his poor relationship with Jamie. He believed Jamie's friend was "put[ting] words into [D.T.’s] mouth."
¶5 At a pretrial conference, the parties discussed an agreement to play D.T.’s entire forensic interview for the jury if D.T. testified inconsistently at trial:
The State informed the District Court that Mikesell objected to edits of the forensic interview. Mikesell did not dispute the State's assertion and clarified that the only objection concerned D.T.’s forensic interview statements regarding the two severed charges of alleged physical abuse of her brothers by Mikesell. The District Court ruled that the forensic interview video would be admitted. Mikesell's first trial resulted in a mistrial due to juror misconduct.
¶6 Mikesell's second jury trial occurred a year later. The record contains no indication that the parties discussed D.T.’s forensic interview video again. D.T. testified that she napped with Mikesell while her brothers and Patricia were home. She recounted that, around Easter 2017, she and Mikesell were napping in his bedroom with the door closed when he made her touch him and told her "he wanted his tongue to go in between [her] legs and then he... grabbed [her] legs and pulled [her] like to the edge of the bed and then... licked [her] vagina." She testified that Mikesell also unzipped his pants and made her touch his penis with her hand. She stated that nothing else happened on Easter and "[i]t was the first time he licked" her. She recalled that he made her touch his penis before and touched her on the vagina but could not remember specific details.
¶7 D.T. recounted another instance where Mikesell licked and sucked on her neck and gave her a hickey. When Jamie asked where the hickey came from, D.T. would not say because she was afraid Mikesell would hurt her. She further testified that the abuse occurred in other locations besides Mikesell's bedroom, including an RV he previously owned and during car rides. She also recounted an incident during a family reunion where Mikesell touched her vagina and made her touch him in the tent where her brother was sleeping.
¶8 D.T.’s testimony contained several statements inconsistent with her forensic interview. First, on direct, D.T. testified that Mikesell put his penis inside her on one occasion. However, on cross-examination, D.T. stated that Mikesell's penis never went inside her. She clarified on redirect that Mikesell rubbed his penis against her vagina, but his penis did not enter her vagina. However, during her forensic interview, D.T. repeatedly stated that Mikesell put his penis in her vagina. Second, D.T.’s testimony on cross-examination indicated that Mikesell did not abuse her anywhere else in the house besides his bedroom, and she affirmed that she did not recall any other incidents than the ones described in her testimony. However, her forensic interview contained statements that Mikesell had abused her on the couch in the living room, in her bedroom in Lincoln, in Mikesell's bedroom, in the family's RV, and in the bathroom. Third, only in D.T.’s forensic interview did she say that Mikesell forced her to engage in anal sex.
¶9 Moreover, concerning the Easter incident specifically, D.T.’s accounts of details differed. In her forensic interview, D.T. indicated Mikesell, after her brother accidentally poked her in the eye, invited her into the bedroom and asked if she wanted to take a nap. On direct examination at trial, D.T. testified she was already taking a nap when Mikesell assaulted her and her testimony did not mention fighting with her brother. On cross-examination, she denied that anyone told her to take a nap and testified she was already in his bedroom watching television with him at the time. There were also inconsistencies surrounding how D.T.’s clothes were removed. On direct examination, D.T. testified that she was "pretty sure" she took her clothes off, but "[couldn't] really remember." On cross-examination, she testified that she was not fully naked and that Mikesell took her pants off. During her forensic interview, D.T. stated that Mikesell pulled her pants off and forced her to take off her shirt. D.T.’s account of what she was wearing on Easter also differed. On direct, she testified that Mikesell pulled down her pants. On cross-examination, she testified that she was wearing "a dress, a butterfly dress" on Easter. A few minutes later, defense counsel had the following colloquy with D.T.:
On redirect, she explained that she may have changed out of the dress but was unsure. In the forensic interview, she stated that she was wearing a "cowgirl shirt" and pants on Easter.
¶10 After D.T.’s direct testimony, defense counsel explained her plan to cross-examine D.T. about her statements made in the video:
¶11 D.T. was asked on cross-examination about her statement in the forensic interview regarding how her body felt during the abuse:
Defense counsel also asked D.T. if she recalled her statement in her forensic interview about the duration of abuse by Mikesell:
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