State v. Stock

• Decision Date: 12 July 2011
• Docket Number: No. DA 10–0295.,DA 10–0295.
• Parties: STATE of Montana, Plaintiff and Appellee,v.Donald Rudolph STOCK, Defendant and Appellant.
• Court: Montana Supreme Court

361 Mont. 1
256 P.3d 899
2011 MT 131

STATE of Montana, Plaintiff and Appellee,
v.
Donald Rudolph STOCK, Defendant and Appellant.

No. DA 10–0295.

Supreme Court of Montana.

Submitted on Briefs April 26, 2011.Decided June 7, 2011.Rehearing Denied July 12, 2011.

[256 P.3d 900]

For Appellant: William F. Hooks, Chad Wright, Attorneys at Law, Gregory A. Jackson, Attorney at Law, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Leo J. Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy County Attorney, Helena, Montana.Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Donald Stock (Stock) appeals from his convictions of felony incest, involving his fourteen-year-old son and six-year-old daughter, in violation of §§ 45–5–507(1), (4) and 45–2–101(8), MCA, and his conviction of felony tampering with evidence in violation of § 45–7–207, MCA. We affirm.

ISSUES

¶ 2 A restatement of Stock's issues on appeal is:

¶ 3 1. Did the District Court err when it allowed a six-year-old alleged incest victim to testify via two-way electronic audio-video communication rather than in the presence of Stock and the jury?

¶ 4 2. Did the District Court abuse its discretion when it prohibited Stock from conducting a forensic interview with, and calling as a trial witness, the four-year-old sibling of the two alleged incest victims?

¶ 5 3. Did the District Court err in allowing the State to present evidence and summary testimony regarding pornographic images obtained from Stock's computer under § 26–1–103, MCA, the transaction rule?

[256 P.3d 901]

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Stock married Debbie Wakeland on May 5, 2001. Debbie had a son, E.S., from a previous marriage who Stock adopted in April 2006. In 2002, Debbie gave birth to K.S., a daughter, and in 2004 Debbie gave birth to Z.S., a son. In December 2008 Debbie decided she could no longer remain married to Stock and told him she was leaving. This marked the beginning of lengthy and rancorous dissolution and child custody proceedings.

K.S. Permitted to Testify Outside the Presences of Stock and the Jury

¶ 7 On May 1 2009, fourteen-year-old E.S. confided in a school counselor that Stock was sexually abusing him. After an investigation of the allegations by Child Protective Services and the Helena Police Department, the State charged Stock with felony incest committed against E.S. On August 26, 2009, the State amended the Information to include a second count of felony incest involving Stock's six-year-old daughter, K.S., and one count of tampering with evidence.

¶ 8 Pursuant to § 46–16–227, MCA, the State moved the District Court to allow K.S. to testify outside the presence of Stock via two-way electronic audio-video communication. Stock objected. After the motion was fully briefed, the District Court held a hearing on November 4, 2009, in compliance with § 46–16–228(1), MCA. Based on the evidence and arguments presented in the briefing and at the hearing, the District Court found that K.S. would be unable to testify in Stock's presence and concluded, after considering all of the factors enumerated in § 46–16–226(1)(a), MCA, that K.S. should be permitted to testify outside the presence of the jury and the defendant. Stock appeals this pretrial ruling.

Stock Prohibited from Interviewing Z.S.

¶ 9 Stock moved the court for an order to allow him to conduct forensic interviews of E. S., K. S., and four-year-old Z.S. The State objected to Stock's request as to Z.S. on the grounds that Z.S. was not going to be called as a witness and Stock failed to establish a substantial need to interview him. The State did not object to his request related to E.S. or K.S. On October 8, 2009, prior to the court's ruling on the motion, Stock subpoenaed E.S., K.S., and Z.S. to testify at trial. On October 21, 2009, the State moved in limine to bar Stock from presenting testimony from Z.S., arguing that Z.S. had no relevant testimony to offer, Z.S. was incompetent to testify because he could not distinguish truth from a lie, and compelling him to testify would be psychologically damaging to Z.S.

¶ 10 On November 6, 2009, the District Court denied Stock's request to interview Z.S. because it concluded that Stock had not established a substantial need to interview such a young child. On January 6, 2010, the District Court denied Stock's request to have Z.S. testify at trial because of Z.S.'s incompetence and the potential psychological harm to him. Stock appeals the pretrial rulings precluding him from interviewing Z.S. and calling him as a witness.

Admissible Pornographic Computer Images from Stock's Computer

¶ 11 During one of her interviews with police investigators, K.S. revealed that Stock had used a computer to show her a video of a “little green man” wearing a white diaper who would pull down the diaper to expose his “booty.” K.S. told the investigators that it was “nasty” and that the incident occurred at Stock's workplace. The State obtained a search warrant to search Stock's computers for this video as evidence that Stock was “grooming” his victims by showing them sexually inappropriate images. The search was conducted by Agent Cooperider from the Department of Justice's Computer Crime Unit. Cooperider's search of Stock's computers did not turn up the video of a little green man, but did result in discovery of graphic images depicting young men engaged in homosexual activity. The images ranged from provocative poses to anal and oral sex scenes.

¶ 12 Helena Police Department Detective Ekola applied for and obtained a second search warrant specific to the images discovered by Cooperider during execution of the first search warrant. Cooperider retrieved

[256 P.3d 902]

these images from a computer that was assigned the user name of Donald Stock and was password-protected. Cooperider summarized his findings in written reports.

¶ 13 The State filed notice of intent to introduce evidence of Stock's prior bad acts by way of Cooperider's written summary reports; the State did not seek to introduce the pornographic images themselves. It its notice, the State argued that the evidence was admissible under M.R. Evid. 404(b) (hereinafter Rule 404(b)) and the transaction rule, § 26–1–103, MCA. Stock objected, arguing that the State could not prove it was Stock who was responsible for accessing the internet images.

¶ 14 On December 22, 2009, the District Court concluded that the pornographic evidence found on Stock's computer was admissible under the transaction rule. The court reasoned that the electronic evidence obtained from Stock's computer was directly related to elements of the incest charges with respect to both children. It further concluded the relevance of the evidence far outweighed any prejudice to Stock and denied Stock's motion to exclude the electronic evidence. Stock appeals this pretrial ruling.

¶ 15 Ultimately, on March 17, 2010, after a seven-day jury trial, Stock was found guilty of all offenses charged. On June 11, 2010, the District Court sentenced Stock to Montana State Prison for a term of fifty years with twenty-five suspended for each count of felony incest and for a term of ten years for felony evidence tampering. Stock is not eligible for parole until Z.S., his youngest child, is eighteen years old. Stock timely appeals only the three pretrial rulings discussed above. Additional facts are included below as necessary.

STANDARDS OF REVIEW

¶ 16 Stock argues the use of two-way electronic audio-video communication testimony during trial violates his constitutional right to confront witnesses against him. Our review of constitutional questions is plenary and we therefore review de novo a district court's interpretation of the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Norquay, 2011 MT 34, ¶ 13, 359 Mont. 257, 248 P.3d 817.

¶ 17 Generally, we review a district court's evidentiary rulings for an abuse of discretion. State v. Mackrill, 2008 MT 297, ¶ 37, 345 Mont. 469, 191 P.3d 451. Rulings on motions in limine are evidentiary rulings and the district court has broad discretion to determine the relevance and admissibility of evidence. State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, 103 P.3d 503. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Mackrill, ¶ 37. Notwithstanding this deferential standard, however, judicial discretion must be guided by the rules and principles of law; thus, our standard of review is plenary to the extent that a discretionary ruling is based on a conclusion of law. Id.

DISCUSSION

¶ 18 Issue One: Did the District Court err when it allowed a six-year-old alleged incest victim to testify via two-way electronic audio-video communication rather than in the presence of Stock and the jury?

¶ 19 Stock argues that §§ 46–16–226 to –229, MCA, which is Montana's statutory scheme allowing a child witness to testify outside the presence of a criminal defendant, is unconstitutional because it violates a criminal defendant's right to confront witnesses against him. Statutes are presumed to be constitutional, and we construe them in a manner that avoids unconstitutional interpretation. State v. Trull, 2006 MT 119, ¶ 30, 332 Mont. 233, 136 P.3d 551. The party challenging a statute's constitutionality has the burden of proving, beyond a reasonable doubt, that the statute is unconstitutional, and any doubt is resolved in favor of the statute. Id. (citing State v. Stanko, 1998 MT 321, ¶ 16, 292 Mont. 192, 974 P.2d 1132).

¶ 20 For purposes of this case, a child witness is an individual who is “13 years of age or younger at the time the individual is called as a witness in a criminal proceeding involving a sexual or violent offense.”

[256 P.3d 903]

Section 46–16–226(1)(a), MCA. Section...