State v. Weaver

• Decision Date: 01 July 1998
• Docket Number: No. 97-304,97-304
• Parties: , 1998 MT 167 STATE of Montana, Plaintiff and Respondent, v. James Elmer WEAVER, Defendant and Appellant. . Heard and
• Court: Montana Supreme Court

Page 713

964 P.2d 713

290 Mont. 58, 1998 MT 167

STATE of Montana, Plaintiff and Respondent, v. James Elmer WEAVER, Defendant and Appellant.

No. 97-304.

Supreme Court of Montana.

Heard and Submitted March 10, 1998.

Decided July 1, 1998.

James H. Goetz (argued), Brian M. Morris (argued), Goetz, Madden & Dunn, Bozeman; James C. Bartlett, Kalispell, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General (argued), Helena, Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell, for Plaintiff and Respondent.

NELSON, Justice.

¶1 James Elmer Weaver (Weaver) was tried by a jury in the District Court for the Eleventh Judicial District, Flathead County, on four counts of sexual assault involving minors. He was convicted on two of the counts and acquitted on the other two counts. Weaver appeals from the judgment of conviction and sentence. We affirm in part, reverse in part, and remand for a new trial.

¶2 The following issues were raised on appeal:

¶3 1. Did the District Court commit plain error by failing to instruct the jury, sua sponte, that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count charged in the information?

¶4 2. Did the District Court properly deny Weaver's motion to dismiss which was based upon the investigating officer's failure to record her interviews with the victims?

¶5 3. Did the District Court abuse its discretion with respect to its rulings on the testimony of Shawn Trontel and Judy Starr?

¶6 Because we reverse on the first issue and remand for a new trial, we decline to address the last issue regarding witness testimony.

Factual and Procedural Background

¶7 Weaver was charged by information with four counts of sexual assault in violation of § 45-5-502(1), MCA. Weaver had been a volunteer with the Big Brothers/Big Sisters program (Big Brothers) in Whitefish since 1984. Over a period of eleven years, Big Brothers matched Weaver with five "little brothers." Four of these boys were named as victims in the charges against Weaver. All of the boys were between nine and eleven years old when they were matched with Weaver.

¶8 Weaver was first matched with J.M. in June 1984, and he acted as J.M.'s big brother until April 1989. In April 1994, J.M. was involved in an automobile accident wherein he sustained some brain damage and was thereafter diagnosed as mildly retarded. One night in June 1995, J.M. told his mother that he had been molested by Weaver during the time that he had been Weaver's little brother. J.M. had never before mentioned any inappropriate conduct on the part of Weaver. Because Weaver was still active in Big Brothers, J.M.'s mother reported the allegations to the director of Big Brothers who contacted the Flathead County Sheriff's Department.

¶9 Detective Maxine Lamb interviewed J.M. and on October 4, 1995, the Flathead County Attorney's Office filed a request for an arrest warrant. One month later, an information was filed charging Weaver with sexual assault against J.M. The information charged Weaver as follows:

The Defendant, James Elmer Weaver, between approximately June, 1984, and April, 1989, knowingly subjected another, J.M., date of birth May 2, 1975, to sexual contact without consent, in Flathead County, Montana, contrary to Section 45-5-502(1), M.C.A.

¶10 Detective Lamb also interviewed T.C. T.C. was matched with Weaver in February 1991 and was Weaver's little brother until Big Brothers ended the relationship in August 1995 due to the allegations against Weaver. Detective Lamb interviewed T.C. at his school without first notifying his parents and without any school officials present in contravention of school policy. Based on an allegation from T.C. (that T.C. later said he was bullied into making) of a single incident of inappropriate touching, the Flathead County Attorney's Office filed an amended information on November 16, 1995, charging Weaver with sexually assaulting T.C. This amended information contained the original charge involving J.M. and also charged Weaver as follows:

The Defendant, James Elmer Weaver, during the summer of 1993, knowingly subjected another, T.C., date of birth October 19, 1980, to sexual contact without consent, contrary to Section 45-5-502(1), M.C.A.

¶11 Also included in this information was a charge involving E.B., who had been Weaver's little brother from January 1990 until July 1990. Detective Lamb had interviewed E.B. at his school, again without first notifying E.B.'s parents and without any school officials present in contravention of school policy. The charge involving E.B. stated:

The Defendant, James Elmer Weaver, between approximately January 18, 1990, and July 2, 1990, knowingly subjected another, [E.B.], date of birth October 21, 1980, to sexual contact without consent, contrary to Section 45-5-502(1), M.C.A.

¶12 After the allegations against Weaver had surfaced, Weaver's wife contacted the mother of the fourth boy, D.M., to enlist their help in defending Weaver against the pending charges. Weaver had been D.M.'s big brother from July 30, 1990, until December 1, 1990, when D.M. moved with his mother to Shelby. D.M.'s mother refused to support Weaver and, instead, contacted the Flathead County Attorney's Office.

¶13 Detective Lamb interviewed D.M. at his home on February 21, 1996. On March 19, 1996, the Flathead County Attorney's Office filed a second amended information adding a charge of sexual assault involving D.M. This information stated, in part:

The Defendant, James Elmer Weaver, between approximately July 30, 1990, and December, 1990, knowingly subjected D.M., date of birth August 21, 1981, to sexual contact without consent, in Flathead County, Montana, contrary to Section 45-5-502(1), M.C.A.

¶14 The fifth boy, K.L., was Weaver's little brother beginning sometime in 1988 and ending after one year when K.L. moved with his family to Eureka. Detective Lamb set up an interview with K.L., but that interview was canceled when K.L.'s mother insisted that the interview be videotaped and that she should receive a copy of the tape. No charges were filed involving K.L.

¶15 Detective Lamb refused to videotape or audiotape the interviews of any of the boys. Furthermore, she did not allow any witnesses present during those interviews and did not make any written notes of the interviews. She later testified that she does not record or take notes of the interviews in such cases so that the victims will not be further traumatized during the process of disclosing embarrassing information.

¶16 On May 29, 1996, Weaver filed a motion to dismiss the charges on the grounds that Detective Lamb intentionally failed to preserve evidence vital to his defense by failing to videotape or audiotape her interviews with the boys or to make handwritten notes of the interviews. Weaver argued that the interviews needed to be reviewable by defense counsel and the court and that the inability to do so resulted in a denial of his right to due process. The District Court held a hearing on June 14, 1996, and, four days later, issued an order denying the motion.

¶17 Trial before a jury was held June 20 through 27, 1996. All five boys testified at trial. J.M. testified to several incidents of sexual assault during the five years that he was Weaver's little brother. D.M. also testified to several incidents of sexual assault, but provided no specific dates or times for these incidents. E.B. testified to an incident on a fishing trip wherein Weaver touched the outside of E.B.'s pants prior to helping E.B. unbutton the top button of his pants so that E.B. could urinate. T.C. testified that Weaver merely explained to him that a penis had more purposes than simply urinating. K.L. testified that there had never been any sexual contact or discussions between himself and Weaver.

¶18 In Weaver's defense, T.C.'s mother testified that T.C. suffered from liver cancer and, since there existed the potential for impotency and sterility, she had given T.C. a book on teenage sexuality and told Weaver that T.C. might have questions regarding the book. T.C.'s mother testified that she objected to T.C. being named as a victim in this case as neither she nor T.C. believed that T.C. had been sexually assaulted by Weaver.

¶19 At the end of the State's case, Weaver moved for directed verdicts on the counts involving E.B. and T.C., but the District Court denied the motions. Thereafter, the jury found Weaver guilty on the charges involving J.M. and D.M. and not guilty on the charges involving T.C. and E.B.

¶20 On August 20, 1996, Weaver filed a motion to disqualify District Judge Katherine Curtis. A hearing was held on the disqualification motion on September 12, 1996, and the motion was granted the following week. On October 30, 1996, District Judge William Nels Swandal assumed jurisdiction of the case.

¶21 After a March 14, 1997 hearing, the District Court sentenced Weaver to two consecutive ten-year sentences. The court determined that treatment in the local community afforded Weaver a better opportunity for rehabilitation, thus the court suspended the entire sentence and placed Weaver on probation subject to certain conditions. These conditions included house arrest until Weaver substantially completed a sex-offender treatment program. Weaver appeals from the judgment of conviction and sentence.

Issue 1.

¶22 Did the District Court commit plain error by failing to instruct the jury, sua sponte, that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count charged in the information?

¶23 Weaver contends on appeal that the State's "vague allegations" as contained in the amended information and the District Court's general instructions regarding unanimity enabled the State to convict Weaver "merely by creating a bad taste in the jury's mouth rather than...