State v. Pound

• Citation: 375 Mont. 241,326 P.3d 422
• Decision Date: 03 June 2014
• Docket Number: No. DA 12–0700.,DA 12–0700.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jimmy Roger POUND, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

375 Mont. 241

326 P.3d 422

STATE of Montana, Plaintiff and Appellee,

v.Jimmy Roger POUND, Defendant and Appellant.

No. DA 12–0700.

Supreme Court of Montana.

Submitted on Briefs April 9, 2014.

Decided June 3, 2014.

For Appellant: Wade Zolynski, Chief Appellate Defender, Nicholas Domitrovich, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K. Plubell, Assistant

Attorney General, Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 After a four-day trial in June 2012 a jury convicted Jimmy Pound of the offense felony sexual assault under § 45–5–502, MCA. Pound appeals and we affirm.

¶ 2 Pound presents the following issues for review:

¶ 3 Issue One: Whether the District Court erred when it found that the victim was unable to testify in open court in the presence of Pound.

¶ 4 Issue Two: Whether the District Court erred when it allowed the State to present the testimony of a forensic interviewer about the victim's statements that were inconsistent with the victim's trial testimony.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 In December 2011 the State charged Jimmy Pound with felony sexual assault against his girlfriend's 4–year–old daughter, in violation of § 45–5–502, MCA. A jury found Pound guilty in June 2012 and in September 2012 the District Court designated him a Tier III sexual offender and sentenced him to 75 years in the Montana State Prison with 10 years suspended.

¶ 6 Prior to trial the State moved pursuant to § 46–16–227, MCA, that the victim, who was then age 5, be allowed to testify outside the presence of Pound. The District Court conducted an evidentiary hearing on the issue and received briefs. Kathleen Shea, a licensed clinical social worker testified based upon her five sessions with the victim. She described the victim as being developmentally younger than her actual age, and as having had little peer interaction. She found that the victim becomes very anxious when separated from her mother. The victim had age-appropriate verbal skills but a limited vocabulary.

¶ 7 The victim described to Shea Pound's sexual contact with her vaginal area, and that it had happened more than once. After making that disclosure, the victim had great difficulty concentrating or focusing. She described chronic nightmares, poor appetite and restlessness. She was hyper-vigilant regarding her mother's safety and had great difficulty separating from her mother. The victim said she was “very afraid” of Pound and became “noticeably anxious” when talking about him. Shea found that the victim acted very differently when talking about Pound. She became agitated, stopped talking and stopped making eye contact. Shea testified that the victim had her own genuine fear of Pound.

¶ 8 Shea concluded that the victim would likely “freeze” if called to testify “in front of any of us” but especially in front of Pound. Shea concluded that it was likely that the victim would be unable to testify in Pound's presence and that forcing her to do so would likely lead to substantial emotional distress.

¶ 9 Based upon the hearing testimony concerning the victim and her relationship with Pound, the District Court found that the victim acts younger than her stated age and that testifying in front of Pound would cause her “a great deal of fear.” The District Court found that this fear would prevent the victim from testifying and could cause her “substantial emotional distress, setting back her therapy.” The District Court found that the victim described suffering trauma inflicted by Pound and that he had hurt her a great deal.

¶ 10 The District Court concluded “by clear and convincing evidence that the child would be unable to testify in open court in the presence of Defendant and that the child would suffer substantial emotional trauma from testifying in the presence of Defendant.” The District Court ordered that the victim's testimony be given in a separate room attended by the judge, both attorneys and the court reporter. Pound and the jury would watch the victim's testimony in real time by an audio-video device. The District Court further ordered that Pound have a “means of immediate private communication with his attorney during the testimony.”

At trial the victim was a reluctant witness. On direct examination she testified that someone had “bothered” her but that she did not remember his name. She said she had nothing to tell the court about Pound and that he had not “bothered” her. She said, however, that she was “too scared” to tell the truth about Pound. The victim testified:

Q. So are you willing to tell—can you tell the judge the truth? Is that a yes or a no?

A. Yes.

Q. So tell the Judge what the truth is.

A. I don't remember.

Q. You don't remember. Okay. Do you remember what the truth is about? No?

A. Huh-uh.

Q. Have you talked to anyone else about the truth?

A. No.

Q. No?

A. Except my grandma.

Q. Except my grandma? What did you tell your grandma?

A. That Jimmy touched my privates.

Q. Can you say that louder?

A. Jimmy touched my private.

Q. So I want to make sure that I get what you said. Did you say, “Jimmy touched my private?”

A. Yeah.

Q. And do you remember this drawing that we were talking about earlier?

A. Yeah.

Q. Can you show me on there, will you circle where your private area is?

A. Right there.

Q. You're pointing right there? Can you circle it or put a dot or an X on it?

A. (Indicating.)

Q. Thank you.

So when Jimmy touched your private, what did he touch your private with?

A. Finger.

Q. Finger?

A. Yeah.

Q. Whose finger?

A. Jimmy's.

Q. Jimmy's finger?

A. Yeah.

Q. What did it feel like when Jimmy touched your private with his finger?

A. I don't know.

Q. You don't know?

What was Jimmy wearing when he touched your private with his finger?

A. Nothing.

Q. Nothing.

Q. Where—what were you wearing when Jimmy touched your private with his finger?

A. My pajamas.

Q. Your pajamas? What did your pajamas look like? Can you say that again?

A. What?

Q. Sorry. Very good. You said, “What?” You're a good listener. Can you tell me what your pajamas looked like.

A. They have skulls on it.

Q. Skulls on it?

A. Yeah.

Q. What are skulls?

A. Bones.

Q. Bones? Did you say what the color was earlier? What color were they?

A. Different colors on the bones.

Q. Did you say balloons or bones?

A. Bones. And then the bones were different colors.

¶ 11 She persistently responded to questions by saying she could not remember, but said that she had told the truth to her grandma. She testified that she told her grandma that Pound had used his finger and “touched my privates.” She described the pajamas she was wearing and said that the touching happened at the “brick house.”

¶ 12 Defense counsel asked the victim if she remembered talking to the forensic examiner Paula Samms, but she did not. She said that her grandma had told her to tell the truth, and after agreeing with many things the attorney asked, said “I'm getting bored.”

¶ 13 After the victim testified the State offered the testimony of Paula Samms, a forensic interview specialist, and director of the County Child Advocacy Center. Samms had conducted an interview with the victim in which the victim had described Pound's sexualconduct with her. The defense objected to any testimony from Samms about what the victim had told her on the ground that the State had not shown the victim her prior statement and had not questioned her about the prior statement. The defense also objected to Samms' testimony as a violation of the right of confrontation.

¶ 14 After hearing arguments, the District Court concluded that Samms could testify about the victim's statements that were inconsistent with the victim's trial testimony, but that the State could not introduce the entire interview.

¶ 15 Samms testified that the victim told her that Pound had used “slippity stuff” when he touched her privates and that it tickled. Samms testified that the victim told her that Pound had torn a hole in the crotch of her pajamas. Samms testified that the victim said she had watched “sexy” movies with Pound, and remembered seeing two girls kiss.

¶ 16 The State also presented the testimony of a neighbor who had babysat for the victim. The neighbor testified about the victim's pajamas with the hole in the crotch, and the victim's statement to her that Pound had caused the hole and “needs to stop touching me.” The victim told the babysitter that Pound had touched her three times. The babysitter's testimony is not at issue on appeal.

STANDARD OF REVIEW

¶ 17 A district court has broad discretion to determine the relevancy and admissibility of evidence, and this Court will not overturn evidentiary rulings absent a showing of abuse of discretion. State v. Lotter, 2013 MT 336, ¶ 13, 372 Mont. 445, 313 P.3d 148; State v. Berosik, 2009 MT 260, ¶ 28, 352 Mont. 16, 214 P.3d 776. We review a district court's application of a statute or rule of evidence de novo to determine whether it is correct. Lotter, ¶ 13. A court abuses its discretion if it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313.

¶ 18 We review a district court's conclusions of law to determine whether they are correct. Olson v. Jude, 2003 MT 186, ¶ 34, 316 Mont. 438, 73 P.3d 809. We review a district court's findings of fact to determine whether they are clearly erroneous. Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175. A finding of fact may be clearly erroneous if it is not supported by substantial evidence in the record; if the district court misapprehended the evidence; or when our review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Brimstone, ¶ 20.

¶ 19 The district court is in the best position to...