State v. Sinz

• Decision Date: 06 July 2021
• Docket Number: DA 19-0267
• Citation: 2021 MT 163,490 P.3d 97
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. Wallis SINZ, Defendant and Appellant.

490 P.3d 97

2021 MT 163

STATE of Montana, Plaintiff and Appellee,

v.Wallis SINZ, Defendant and Appellant.

DA 19-0267

Supreme Court of Montana.

Submitted on Briefs: January 20, 2021

Decided: July 6, 2021

For Appellant: William Boggs, Attorney at Law, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant Wallis Sinz appeals from the March 21, 2019 Judgment and Commitment of the First Judicial District Court, Lewis and Clark County, following his felony convictions of Sexual Intercourse Without Consent and Sexual Assault, in violation of §§ 45-5-503 and -502, MCA. We address the following issues on appeal:

Issue One: Whether Sinz received ineffective assistance of counsel.

Issue Two: Whether this Court should exercise plain error review regarding Sinz's claims about expert testimony undermining his presumption of innocence.

Issue Three: Whether the District Court erred by answering a jury question during deliberation without consulting the parties.

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On August 7, 2017, the State charged Sinz with three counts of sexual intercourse without consent and two counts of sexual assault based on allegations that he had sexually abused his eight-year-old twin nieces, K.B. and D.B., on multiple occasions between January and July 2017. Sinz was convicted following a jury trial on October 22-24, 2018.

¶4 During voir dire, which was conducted both in open court and privately in chambers, sixteen jurors were excused for cause because they expressed their inability to be impartial due to professional, personal, or family experience with sexual abuse cases. One juror, D.C., disclosed in chambers that a similar crime had occurred in his family, but he assured the court that he could remain impartial:

Court: What did you feel you needed to tell us about?

D.C.: More of a full disclosure. My brother-in-law -- actually my ex-brother-in-law is in prison for a very similar crime to my niece, who I believe was eight years old at the time. There was plenty of years that had passed before she accused him, and she did it because of her little sister. It's hard to say what it will be like during trial, but right now I don't think it will be an issue but –

Court: Okay.

D.C.: Just full disclosure.

Court: All right. [Prosecutor], do you want to ask any questions?

Prosecutor: I don't, Judge. Just could you set it aside if the Judge were to instruct you that -- set that aside and decide the case on the basis of the facts you heard in court this week? Could you do that?

D.C.: That's what I'm saying. The answer to that now is yes. It's a different situation going through trial and whatnot, so –

Court: But you –

D.C.: As of right now, yes.

Court: You felt you needed to disclose this to us so we're aware?

D.C.: Yes.

Court: Thank you, [D.C.]. We'll see you after lunch.

¶5 Later, during defense counsel's voir dire, D.C. spoke about his prior service as a juror at a DUI trial, describing the experience as "confusing." When defense counsel asked why it was confusing, D.C. explained that there were different statements and perceptions from the two sides, but "there was a lot of video evidence that ultimately helped" the jury reach a guilty verdict in that case. Defense counsel neither sought to remove D.C. for cause nor exercised a peremptory challenge. The jury selected D.C. to serve as jury foreman.

¶6 K.B. and D.B. testified at trial. D.B. testified that on more than one occasion, Sinz rubbed her "privates" and "front end" with his hands underneath her clothing while she sat on his lap. D.B. testified that sometimes it felt good when Sinz rubbed her privates but said it hurt when he "reached down too far." D.B. also described and drew a picture of an instance in the bathroom when Sinz "kissed" and "licked" her privates. Sinz told D.B. not to tell anyone about the events, and D.B. explained she thought she would get in trouble "[f]or telling what Uncle did." D.B. eventually disclosed the abuse to her parents, who contacted the police.

¶7 K.B. testified that Sinz rubbed her "vagina" on more than one occasion. K.B. testified that sometimes it felt good, but other times it did not because his fingernails were sharp. K.B. also testified that, on one occasion during a camping trip, Sinz touched her vagina with "his vagina," which K.B. described as being "between his legs" in the front of his body. As with D.B., Sinz told K.B. not to tell anyone about their experience, and K.B. believed her parents would be mad at her and not let her see her uncle again.

¶8 Dr. Erin Keefe performed sexual assault examinations of K.B. and D.B. in July 2017. At trial, Dr. Keefe explained that for the girls to have felt either pleasure or pain when their genitalia were touched, the vulva had to be penetrated.

¶9 The District Court also heard testimony from Dr. Wendy Dutton, an expert witness with experience and education in the field of child sexual abuse. Testifying as a blind witness with no knowledge of facts related to the case, Dr. Dutton provided general information about issues concerning children's sexual abuse disclosures. Throughout her testimony, Dr. Dutton emphasized that she was not offering any comment on the credibility of D.B. or K.B. Sinz did not object to Dr. Dutton's testimony at trial.

¶10 Dr. Dutton testified that children are less likely to be abused by a stranger, and it is "more frequent" that children are abused by someone they know through a process of victimization. Dr. Dutton testified that children often delay disclosing incidents of sexual abuse, but whether a disclosure is delayed or immediate generally has no correlation to whether the allegation is true or false. When asked to explain what she meant by "false allegations of sexual abuse," Dr. Dutton explained that false allegations generally, but not exclusively, occur in two types of scenarios. The "more common" false allegation is an erroneous report where, upon investigation, there is a normal and innocuous explanation for the child's statements (e.g., touching during bath time). The other is a "malicious false report, which tends to be more rare." This type of report is usually connected to an ulterior motive or attempt to secure secondary gain. Dr. Dutton explained that when incidents of false malicious reports occur:

[T]hey tend to occur most commonly, but not exclusively, in two situations. The first is generally involving young children whose parents are involved in a high conflict divorce or custody dispute. ... The [second situation is] typically the teenage girls. And usually the goal or ulterior motive is trying to cover up the fact that they are having consensual sex with somebody.

¶11 When asked during cross-examination if she was there to comment on the credibility of K.B. and D.B. or offer an opinion about whether the allegations in the present case were true, Dr. Dutton responded that she was not and "it wouldn't be appropriate." When explaining how information about child sex abuse victims is gathered, Dr. Dutton clarified that the factors a researcher may look for in a child's statement is "different from what a jury does when the jury listens to all the witnesses and then makes an assessment of credibility."

¶12 During closing argument, when referring to Dr. Dutton's testimony, the prosecutor stated that "Dr. Dutton wasn't here to comment on the girls’ credibility, but what she told you is that incidents of malicious false allegations of child sex abuse are very rare. And I would submit to you this is not one of those cases."

¶13 Following closing arguments and jury instructions, the jury retired to deliberate. After deliberating for two hours, the jury submitted a written inquiry to the court. The court convened the parties, and the jury's inquiry was read aloud. Following discussion with the parties, the court wrote back to the jury, "I cannot answer your questions. You must review the evidence and the instructions." There followed some discussion about whether the parties needed to be convened if another jury question was submitted, and the court stated it would "probably" call them in to consult.

¶14 A few hours later, the jury submitted a second written question to the court: "What happens if we cannot come to a unanimous decision for Counts 1, 2, and 3? Do we still move on to the lesser charge? Or do we continue to deliberate until we are unanimous?" Without consulting the parties, the court responded to the jury in writing: "You should work to come to a unanimous verdict on Counts 1, 2, and 3. However, if you cannot come to a unanimous verdict on Counts 1, 2, and 3, you may move on to Counts 4 and 5." The jury returned their verdict shortly thereafter.

¶15 Sinz was convicted of Count I: Sexual Intercourse Without Consent as to D.B.; Count II: Sexual Intercourse Without Consent as to K.B.; Count III: the lesser-included offense of Sexual Assault as to K.B.; Count IV: Sexual Assault as to K.B.; and Count V: Sexual Assault as to D.B.

¶16 After the jury was excused, the court advised the parties about the jury's second question and explained, "I took it upon myself to answer it." Sinz did not object or raise any concerns regarding the court answering the jury's question without consulting the parties.

¶17 On January 10, 2019, Sinz was sentenced to serve 210 years in Montana State Prison, with 100 years suspended.

STANDARDS OF REVIEW

¶18 Ineffective assistance of counsel (IAC) claims present mixed questions of law and fact and are reviewed de novo. State v. Ward , 2020 MT 36, ¶ 15, 399 Mont. 16, 457 P.3d 955. We "review IAC claims on direct appeal if the claims are based solely on the record." Ward , ¶ 15.

¶19 Generally, this Court will not address issues raised for the first time on appeal. State v....