State v. Aker

371 Mont. 491

310 P.3d 506

STATE of Montana, Plaintiff and Appellee,

v.Jimmie Lee AKER, Defendant and Appellant.

No. DA 11–0696.

Supreme Court of Montana.

Submitted on Briefs Feb. 20, 2013.

Decided Sept. 4, 2013.

For Appellant: Wade Zolynski, Chief Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana, Lewis K. Smith, Powell County Attorney; Deer Lodge, Montana Dan Guzynski, Joel Thompson, Assistant Attorneys General, Special Deputy County Attorneys; Helena, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[371 Mont. 492]¶ 1 Jimmie Lee Aker appeals the judgment entered by the Montana Third Judicial District Court, Powell County, after a jury convicted him of sexual intercourse without consent following a four-day trial in May 2011. Aker appeals his conviction on the grounds that the prosecutor committed plain error during closing argument and that Aker's counsel provided ineffective assistance during the trial. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether plain error review should be exercised to grant Aker a new trial on his claim of prosecutorial misconduct during closing arguments.

¶ 4 2. Whether Aker received ineffective assistance of counsel due to his counsel's failure to object to hearsay testimony that bolstered the victim's credibility.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 On June 10, 2010, the Powell County Attorney filed an information charging Aker with one count of sexual intercourse without consent, a felony, in violation of § 45–5–503(1), MCA, and two misdemeanor charges that are not at issue in this appeal. The felony count alleged that between November 1, 2009, and December 31, 2009, Aker engaged in sexual intercourse without consent with C.Y. The date of the offense was in dispute, but alleged to have been near C.Y.'s twelfth birthday, which was in late November 2009.

¶ 6 As is common in cases alleging sexual contact with a minor child, the defendant was well known to the alleged victim and there were no eyewitnesses to the event. As such, the outcome of the trial depended on who the jury believed. Each party called numerous witnesses in its case in chief and both sides conducted vigorous cross-examination in order to undermine the other's theory.

¶ 7 At trial, C.Y. testified that in November or December of 2009, she was babysitting L.L., her cousin, and several other small children, at her cousin's house. When she arrived at the house, L.L.'s mother Amie and stepfather Donald, as well as two other adults, were making dinner for the children. At some point after dinner, all of the adults left the house, leaving C.Y. in charge. After C.Y. had put the children to sleep, she testified that she went downstairs to watch a Hannah Montana television show.

[371 Mont. 493]¶ 8 Aker previously had dated C.Y.'s aunt, and C.Y. testified that “he was like an uncle” to her. While C.Y. lay on the couch watching television in her pajamas, Aker entered the room. C.Y. testified that he walked over to her, pulled down her pajama pants and underwear, and “put his first two fingers inside [her vagina]” while “he had the other hand on [her] chest.” C.Y. pretended that she was sleeping during the incident, which she stated lasted for twenty minutes; afterwards, Aker washed his hands and, before leaving, he told C.Y. that she “couldn't tell anyone or [she] would get in trouble and he would too.” C.Y. then went to the bathroom and, when she wiped herself, she discovered that she was bleeding, which scared her. For several weeks, C.Y. did not tell anyone what had happened because she felt like she had done something wrong.

¶ 9 C.Y. testified that, eventually, she confided in her mother's best friend, Cari, and told her what Aker had done. Cari testified that C.Y. gave her a “full account” of what happened. Cari's recollection of her conversation with C.Y. was consistent with C.Y.'s testimony, with some differences. Cari testified that C.Y. told her that she and Aker had a short conversation before he “walked over and he kind of grabbed her by the shoulders ... and laid her down on the couch.” Cari also recalled that C.Y. said that she struggled, and Aker told her “this is normal,” before unbuttoning her pants. C.Y. also told Cari that the incident lasted half an hour and that she waited until she heard Aker's car leave before she used the bathroom. Aker's attorney did not object as Cari relayed what C.Y. had told her. Cari also testified about the conversation she subsequently had with C.Y.'s mother, Jennifer.

¶ 10 The State called Jennifer as its next witness. Although C.Y. has never spoken with her mother about what Aker did to her, Jennifer did testify about her phone conversation with Cari after C.Y. informed Cari of what had happened. Jennifer testified that Cari told her that C.Y. “had been sexually molested ... [by] Jim Aker.” Aker's attorney did not object as Jennifer recalled what Cari previously had told her on the telephone.

¶ 11 After Jennifer testified, the State called Dr. Michelle Corbin, an expert in family medicine. Dr. Corbin testified that Powell County Sheriff Scott Howard referred C.Y. to her and that she performed a sexual abuse examination of C.Y. nearly two months after the assault. Dr. Corbin explained that C.Y. had described the incident to her—that it was a one-time event that lasted for twenty minutes and that Aker had penetrated her vagina with two fingers. Dr. Corbin also explained that, even though she did not find any physical evidence of the assault, that did not surprise her and it did not call into question the veracity of C.Y.'s account because such an injury usually heals within twenty-four to forty-eight hours. Aker's attorney did not object during Dr. Corbin's testimony.

¶ 12 Next, the State called Kristi Rydeen, a licensed clinical professional counselor, to testify. In addition to testifying about C.Y.'s general demeanor during counseling sessions, Rydeen testified that C.Y. told her about “the incident of abuse perpetuated by Jimmie Aker.” On redirect, the prosecutor asked Rydeen, “[i]n your discussions with [C.Y.] did she reference or did you find any other trauma that would explain the symptoms you were observing and having been reported, other than sexual abuse by [Aker]?” Rydeen responded “no.” Aker's attorney did not object to those statements identifying Aker as the assailant.

¶ 13 The defense theory was that Aker could not have committed the crime because he “didn't go to that house” on the night C.Y. was there and because, due to a recent back injury, he physically was incapable of being in the position C.Y. claimed he took during the assault. Though he did not object to their direct testimony, Aker's counsel cross-examined the State's witnesses about certain details in C.Y.'s statements to them to illuminate inconsistencies. For example, he established that C.Y. had related different dates when the offense occurred, whether Aker was standing, kneeling, or on the couch when he assaulted her, where his hands were on her upper body, and whether any of the adults had come home while she was still awake. He also brought out through the State's witnesses other issues and circumstances in C.Y.'s life as alternative explanations for her anxiety and nightmares, including, in part, bullying at school and by her brother and having a father in jail and a mother in military combat duty overseas.

¶ 14 In his case in chief, Aker called Sheriff Howard to testify about prior inconsistent statements C.Y. made to Howard regarding the date on which the incident occurred and what Aker had told her that night. Under questioning by Aker's counsel, Howard acknowledged that C.Y. had mistakenly or erroneously alleged that Aker saw her and waved to her during a community gathering months after the assault; an investigation determined that it could not have been Aker. On cross-examination by the State, Howard testified about additional statements C.Y. made during the interview that were consistent with C.Y.'s trial testimony. Aker's attorney did not object to that testimony.

¶ 15 Aker also presented evidence that C.Y. only stayed the night at her cousin's house on one occasion in November and December of 2009. Aker called three adult witnesses who shared the home—L.L.'s mother, Amie, L.L.'s step-father, Donald, and Donald's sister, Angela. All three testified that they were friends with Aker, that C.Y. stayed overnight at the house only one time during the period charged, and that Aker did not visit the house on that night. Aker also called nine-year-old L.L., who testified that C.Y. had only spent the night at her house once, that Aker was not there that night, and that she never told C.Y. that Aker had touched her. That statement contradicted the testimony of Mary Pat Hansen, a nurse practitioner who had conducted a forensic interview of C.Y. and testified in the State's case in chief. Hansen acknowledged on cross-examination that C.Y. reported to her that L.L. told C.Y. that Aker also had “touched her” in her “private spots.” Aker also introduced testimony, including his own, that he could not have sexually assaulted C.Y. in the manner that she described because he was recovering from a severe back injury in November and December of 2009. The State attempted to discredit Aker's witnesses, pointing out that they all were very close friends and that Aker spent considerable time at their home during the time period in question, when both he and Amie were off work recovering from injuries. The State impeached Amie with evidence that she had lied about whether she sustained her injury from an assault at work or a slip and fall.

¶ 16 In closing arguments, the prosecutor argued that C.Y. was a credible witness because the core details of the statements she provided to Cari, Sheriff Howard, Dr. Corbin and Rydeen were consistent:

And what...