State v. Thompson

• Decision Date: 17 July 2001
• Docket Number: No. 00-207.,00-207.
• Citation: 28 P.3d 1068,2001 MT 119
• Parties: STATE of Montana, Plaintiff and Respondent, v. Laurence E. THOMPSON, Defendant and Appellant.
• Court: Montana Supreme Court

28 P.3d 1068

2001 MT 119

STATE of Montana, Plaintiff and Respondent, v. Laurence E. THOMPSON, Defendant and Appellant.

No. 00-207.

Supreme Court of Montana.

Submitted on Briefs March 22, 2001.

Decided July 17, 2001.

Charles M. Joslyn, Attorney at Law, Choteau, MT, For Appellant.

Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, MT, Joe Coble, Teton County Attorney, Choteau, MT, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The State of Montana filed an Information in the District Court for the Ninth Judicial District in Teton County, charging Laurence Thompson with sexual assault of his minor daughter, a felony in violation of § 45-5-502, MCA. Following trial by jury, Thompson was found guilty of sexual assault. Thompson appeals his conviction. We affirm the judgment of the District Court.

¶ 2 The following issues are presented on appeal:

¶ 3 (1) Did the District Court err when it had testimony read to the jury after the jury had begun deliberations?

¶ 4 Did the District Court err when it allowed evidence of the victim's behavior which demonstrated victimization prior to the date of the offense alleged in this case?

¶ 5 Is the defendant entitled to relief for the state's failure to disclose exculpatory evidence?

¶ 6 Was the evidence sufficient to support the defendant's conviction?

FACTUAL BACKGROUND

¶ 7 The defendant, Laurence Thompson and his common law wife, Nyna, have two young daughters. Their eldest daughter, NT was four years old at the time of the trial. Nyna is employed as a Certified Nurses Aide at the Teton Medical Center. Terri Cuthbert is a registered nurse with the Teton County Health Department. Nyna spoke with Terri Cuthbert regarding her concern for NT's behavior when Cuthbert met Nyna at the Women, Infants and Children clinic. Cuthbert asked Nyna whether she would be interested in taking part in Cuthbert's program. The goals of the program are to identify problems within the family and then educate the parents about the appropriate discipline. In early 1998, Cuthbert began working with the Thompson family.

¶ 8 During a home visit, Cuthbert observed NT engaged in sexual self stimulation. Nyna explained that this behavior had been occurring for awhile. Cuthbert suggested to Nyna that the family receive counseling. Although Nyna agreed to the counseling and Cuthbert made appointments, all the appointments were either missed or cancelled.

¶ 9 Patti Jacobs, a social worker for the Department of Health and Human Services, responded to Cuthbert's referral and went to the Thompson home to meet with the family. The family again agreed to participate in counseling.

¶ 10 Rebecca Maphies was referred by the Department of Public Health and Human Services to the Thompson family. Maphies was a mobile therapist who worked with families at their homes in an effort to avoid removing the children from their homes. Maphies also became concerned about sexual abuse after observing NT. NT made repeated sexually explicit comments to Maphies which were not appropriate for a child of her age. Maphies reported these findings back to Jacobs.

¶ 11 Based on this information, Jacobs removed NT and her younger sister from the Thompson home and put them in foster care. Jacobs placed NT in the Head Start program and referred her to a therapist for counseling and a doctor for a physical examination. Dr. Nancy Maynard is a pediatrician at the Great Falls Clinic. On September 24, 1998, she examined NT but did not find any physical evidence of sexual abuse. However, in her experience, most physical examinations are inconclusive when fondling is involved. She examined NT for a second time in February, 1999, and although she observed redness around the vaginal area, she could not reach a conclusion based on this observation.

¶ 12 While in foster care, the children visited their grandparents during the first part of November in 1998. Nyna and Larry spent the week at the house with them. While there, Nyna and her stepfather worked nights while Larry stayed home with the children. When NT returned to foster care, her foster mother noticed a distinct difference in her behavior—she was much more withdrawn and quiet.

¶ 13 On November 24, 1998, the State of Montana filed an Information charging Thompson with the felony sexual assault of his minor daughter, in violation of § 45-5-502, MCA. The information alleged that the incident occurred on November 5, 6 or 7, during NT's visit with her grandparents. A jury trial was held on September 26 and 27. The jury found Thompson guilty as charged.

DISCUSSION

ISSUE ONE

¶ 14 Did the District Court err when it had testimony read to the jury after the jury had begun deliberations?

¶ 15 During deliberations, the jury sent a note to the Court in which it asked for a copy of NT's testimony. The judge replied that the Court could not repeat the testimony after deliberations had begun because it would place undue emphasis on the testimony. The jury sent another note to the court, explaining their reasons for requesting NT's testimony. The note reported that NT spoke too softly during the hearing, and several members of the jury were unable to hear the testimony. Upon reconsideration, the judge determined that NT's testimony included both exculpatory and inculpatory testimony and, therefore, was beneficial to both parties. The court decided to allow the jury to hear the testimony of NT. That decision was discussed with the parties' attorneys and no objections were made at the time. The judge sent a note to the jury, cautioning them not to give more weight to NT's testimony than any other testimony from the trial. The court reporter then read NT's testimony from her notes.

¶ 16 We review a district court's decision to allow or disallow a jury's request to re-hear testimony for an abuse of discretion. State v. Harris (1991), 247 Mont. 405, 808 P.2d 453.

¶ 17 Thompson claims that the Court erred when it allowed the testimony to be read to the jury. He contends that allowing the jury to hear NT's testimony after deliberations had began violates § 46-16-503, MCA. Section 46-16-503 provides:

After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.

¶ 18 Pursuant to § 46-16-503, it is within the discretion of the court to determine whether the jury should rehear the testimony. When, as in this case, the jury could not hear NT when she spoke in the courtroom and her testimony was an essential part of the case, including evidence favorable to both parties, we conclude that the District Court did not abuse its discretion when it allowed the jury to hear NT's testimony during deliberations.

ISSUE TWO

¶ 19 Did the District Court err when it allowed evidence of the victim's behavior which demonstrated victimization prior to the date of the offense alleged in this case?

¶ 20 The State introduced testimony from Rebecca Maphies and Terri Cuthbert, two of the counselors that observed NT. Cuthbert testified that she observed NT engaged in sexual self-stimulation. Maphies testified to several sexual comments that NT made toward Maphies. These comments led to Maphies' recommendation that the children be removed from the household.

¶ 21 Thompson argues that the District Court erred when it allowed the State to admit the testimony because it pertained to events which occurred before the assault he was accused of and was therefore not probative of any fact in issue. He also contends that even if the evidence is relevant, it should still have been excluded as prejudicial and confusing pursuant to Rule 403 of the Montana Rules of Evidence. Finally, Thompson asserts that the evidence violated Rule 404(b), M.R. Evid., and our decision in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, because it inferred prior bad acts on his part and the procedural requirements of Matt were not complied with. At trial, however, no objection was made on the basis of Rule 404(b) or the procedural requirements of Matt. The only objection to Cuthbert's testimony was that it was irrelevant. The objection to Maphies' testimony was based on hearsay and relevance. Therefore, Thompson's objection based on Rule 404(b) was waived and cannot be considered on appeal. Furthermore, Thompson's objection based on hearsay has not been argued on appeal. Therefore, we limit our discussion to whether the evidence was irrelevant or prejudicial.

¶ 22 Evidence is relevant if it tends to make a material fact more or less probable. Rule 401, M.R.Evid. Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence." Cuthbert and Maphies' testimony described the abnormal behavior exhibited by NT which led to her removal from the household and ultimately, the incident in question.

¶ 23 During Cuthbert's testimony, she described her observations of sexual self-stimulation by NT. She testified that she discussed these problems with Nyna who, despite being previously aware of them, failed to do anything about them. Cuthbert made several appointments for the family to see a counselor. During cross-examination Thompson's attorney asked her how the defendant was connected with any of the actions that Cuthbert described. She stated that Thompson was out of the state at the time she made her observations. She described no connection.

¶ 24 Maphies also testified that she noticed abnormal behavior by NT and that NT...