State v. Passmore, DA 08-0267.

• Docket Nº: No. DA 08-0267.
• Citation: 355 Mont. 187, 2010 MT 34, 225 P.3d 1229
• Case Date: February 16, 2010
• Court: United States State Supreme Court of Montana

225 P.3d 1229 2010 MT 34 355 Mont. 187 STATE of Montana, Plaintiff and Appellee,
v.
Terence Richardson PASSMORE, Defendant and Appellant. No. DA 08-0267. Supreme Court of Montana. Submitted on Briefs August 12, 2009. Decided February 16, 2010.

[225 P.3d 1233]

For Appellant: Wendy Holton, Attorney at Law, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana. Carlo Canty, Special Deputy Park County Attorney, Helena, Montana, Brett Linneweber, Park County Attorney, Livingston, Montana.

[225 P.3d 1234]

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Terence R. Passmore appeals from his convictions of one count of sexual intercourse without consent and three counts of sexual assault following a jury trial in the Sixth Judicial District Court, Park County. We affirm.

ISSUES

¶ 2 Passmore raises four issues on appeal:

1. Did the District Court err in denying Passmore's motion to dismiss the prosecution on the grounds of preaccusation delay?

2. Did the District Court err in denying Passmore's motion to dismiss the prosecution on the grounds of prosecutorial misconduct?

3. Did the District Court abuse its discretion in disallowing extrinsic evidence of prior statements allegedly made by one of the victims?

4. Did the District Court abuse its discretion in excluding testimony from a defense witness that Passmore lacked the character traits of a sex offender?

BACKGROUND

¶ 3 Passmore and his wife moved to Livingston, Montana, in March 1997 after he was offered the pastorship of the Livingston Church of God. The two victims in the present case, whom we refer to as C.R. and J.R., and their parents, Edwin and D'Dea, joined Passmore's congregation the following year. At the time, C.R. was 11 years old (she turned 12 in July 1998) and J.R. was 13 years old (she turned 14 in November 1998).

¶ 4 The events underlying the charged offenses occurred in the summer and fall of 1998. During this period, C.R. routinely helped out at the church with various chores, such as cleaning, vacuuming, painting, spraying weeds, and picking up rocks in the yard. J.R. also helped out with chores, though not as often. On occasions when they were both at the church, C.R. and J.R. typically worked separately on different projects.

¶ 5 C.R. and J.R. both testified at Passmore's trial about interactions and contacts he had with them of a sexual nature. For example, J.R. testified that one day while she was taking laundry up to Passmore's bedroom in the parsonage, Passmore followed her there and asked whether she had started her menstrual cycle yet, whether she was having sex with boys, and whether she had been tickled all over. Passmore lay down on the bed and asked J.R. to lie beside him so he could tickle her. J.R. felt this would be inappropriate; so, she made up an excuse and left the room.

¶ 6 Similarly, C.R. testified that one day while she was vacuuming the sanctuary, Passmore came in and asked her to sit down because he wanted to ask her a question. She did so, and Passmore then asked whether she had started her menstrual cycle. C.R. replied, "No." He also asked whether J.R. had started her menstrual cycle, and C.R. said she did not know. Passmore then pulled C.R. closer and started tickling her. C.R. squirmed, and they ended up on the floor, at which point Passmore put C.R.'s hands over her head and held them there with one hand while he tickled her with his other hand. He then moved his hand up her leg, under her shorts, and started rubbing her genitalia. He commented that her underwear was his favorite color. He then moved the underwear aside and digitally penetrated her vagina. C.R. testified that "I was trying to fight him, and eventually I just kind of calmed down and said, I think I need to go back to vacuuming, now. And he got up and went back into his office."

¶ 7 Shortly thereafter, C.R. was in the nursery picking up toys and preparing to vacuum when Passmore came in and started tickling her again. She testified that "we wound up, again, on the floor where we kind of ... wrestled back and forth. I remember him being on top of me, and then somehow in our moving around, it got to where we were facing each other, but I was positioned more on his lap, and he was holding me there." At this point, Edna Miller (a member of the congregation) entered the room. She saw Passmore and C.R. sitting on the floor facing each other. Passmore had his legs straight

225 P.3d 1235

out and C.R. was straddling his knees. Miller further observed that Passmore was holding C.R.'s arms and rocking her back and forth. After roughly 30 seconds, they noticed Miller standing there. According to Miller, C.R. jumped up and stated, "He's teasing me." Passmore, who was "kind of red-faced," also jumped up and left the nursery, telling Miller he needed to show her a document in his office.

¶ 8 C.R. testified about several other incidents. One took place in a shed Passmore was building near the parsonage. C.R. was working on a project there when Passmore started tickling her and his hand went up her shirt to her chest. In another instance, also in the shed, Passmore fondled C.R.'s breasts and tried to do the same with her genitalia. Regarding this tickling and fondling, C.R. explained that she "thought it was kind of a weird situation, but he was the pastor, so I didn't question it."

¶ 9 Another incident occurred in Passmore's truck while he and C.R. were going to get some dirt to fill in holes in the parsonage yard. Passmore placed one hand on C.R.'s thigh while he was driving and rubbed her inner thigh near her crotch. On still another occasion, C.R. accidentally got paint on her shorts while painting some trim on the shed. Passmore suggested it would be a good idea to wash them right away to get the paint out. So, they put the shorts in the laundry machine and C.R., in the meantime, wore a pair of windbreaker pants she had with her. Later, while waiting for the shorts to dry, C.R. and Passmore sat on a couch in the parsonage and watched some home videos. At some point, Passmore asked C.R. to sit on his lap. She complied, but sat perpendicularly to his legs. Passmore, however, turned her so that she was facing him, with her buttocks on his knees. C.R. testified that the following then occurred:

We sat there for a minute, and he had his hands on my stomach and abdomen, where he lifted my shirt up. He commented on the fact that my bra was more fancy and lacey. He continued up, and one hand went over the top of my bra, with the lace, and the other one went underneath, `cause it was stretchy, and he, I guess you would call it manipulated my breasts.

C.R. stated that Passmore fondled her breasts for about five minutes until C.R. told him that she could see his wife coming down the road in their Subaru.

¶ 10 In July 1998, the church youth group took a trip to the Big Timber Waterslide Park. Passmore and several parents chaperoned the event. J.R. testified that Passmore went down the slides with her and, with J.R. sitting in front of him, "he would grab me over my chest and lay me back against him to go through the tunnels," with his inner forearms on J.R.'s breasts. J.R. felt uncomfortable with this but assumed it was accidental because "I didn't think that my pastor would purposefully touch me like that." C.R. testified that Passmore rode down the slide with her as well and that as they leaned back to go through the tunnels, his hands moved from her waist up to her breasts.

¶ 11 The youth group also took a trip to Chico Hot Springs in December 1998. C.R. testified that Passmore was in the pool with her and the other kids and that he attempted to put his hand inside her swimsuit. C.R. swam away and hid behind some male friends. J.R. testified that Passmore actually tickled her and, at one point, put one arm around her midsection and pinched her butt three times with his other hand. J.R. elbowed Passmore in the face and took a swing at him with her right hand in order to get away.

¶ 12 On the way home from Chico, Edwin asked J.R. why she had taken a swing at Passmore in the pool. J.R. told him it was because Passmore would not stop pinching her butt. The next morning, C.R. told D'Dea that Passmore had touched her inappropriately as well and that this had been going on since the summer. In light of these revelations, Edwin and D'Dea filed a complaint with church officials (on behalf of C.R. and J.R.) and attempted to resolve the matter within the confines of the church. As D'Dea explained at trial, "part of the doctrine was that we were to settle things within and not go to the outside. So, we tried. We did everything that we could feasibly do, through the church, itself, to rectify the situation."

225 P.3d 1236

They did not report the incidents to law enforcement.

¶ 13 A church "Trial Board" reviewed Edwin and D'Dea's complaint and concluded in December 1998 that the evidence against Passmore was "inconclusive." Nevertheless, observing that "the appearance of `borderline' conduct remains an issue," the board recommended that Passmore undergo counseling. Passmore, however, voluntarily left his position and moved out of state in January 1999.

¶ 14 Although Edwin felt that the matter had not been dealt with appropriately, he also felt that it was out of his hands. Then, in 2002, he did some plumbing work for a local attorney named Mark Hartwig. Upon learning that Hartwig was an attorney, Edwin described the incidents involving Passmore and the decision of the church board, and he conveyed some confusion about his and his daughters' rights. Hartwig advised Edwin to report the incidents. Thereafter, in the fall of 2002, Edwin contacted the County Attorney and also met with Michelle Morris, a detective with the Livingston Police Department.

¶ 15 The State did not initially pursue the matter, however. Conflicting explanations for this were...