State v. Dominguez

1

2024 MT 221N

STATE OF MONTANA, Plaintiff and Appellee, v. SACRAMENTO JUAN DOMINGUEZ, JR., Defendant and Appellant.

No. DA 22-0019

Supreme Court of Montana

October 1, 2024

Submitted on Briefs: July 31, 2024

Appeal From: District Court of the Seventeenth Judicial District, In and For the County of Valley, Cause No. DC-2019-19 Honorable Yvonne Laird, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Alexander H Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Dylan J Jensen, Valley County Attorney, Glasgow, Montana

OPINION

Laurie McKinnon, Justice

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Sacramento Juan Dominguez, Jr., (Dominguez) appeals his convictions for three counts of incest entered in the Montana Seventeenth Judicial District Court, Valley County. We affirm in part and reverse and remand in part.

¶3 On July 26, 2018, 16-year-old A.F. moved from her mother's home in Renton, Washington, to live with Dominguez, her father, in Glasgow, Montana. Dominguez lived with his girlfriend, Chanette Nesbitt (Nesbitt), and her four children. Prior to this, A.F. had never met Dominguez. On August 12, 2018, Dominguez took A.F. camping, telling her it was an opportunity for them to bond. They packed two coolers one sleeping bag, one blanket, some food, and one tent. They found a spot near the Vandalia Dam and set up camp.

¶4 At trial, A.F. testified that she entered the tent at around 6:00 or 7:00 p.m. A.F. recalled falling asleep around 8:00 or 9:00 p.m. while Dominguez drank liquor and smoked marijuana. During the night, A.F. woke up three separate times to Dominguez "sexually penetrating" her. She feigned sleep on each occasion. She kept track of the times of each incident based upon the ambient light outside the tent and with her phone. On the third incident, A.F. testified Dominguez ejaculated on the back of her thighs and on a blanket. He then cleaned his semen with a shirt.

¶5 In the morning, the two packed up camp and returned to Glasgow. A.F. disclosed the abuse to Nesbitt and one of her children. She also disclosed the abuse to the police. At trial, A.F. recounted what she had told them at the time, which was consistent with her testimony. Defense counsel did not object to the elicitation of this testimony. DNA analysis performed on A.F.'s underwear returned results matching Dominguez's profile but did not return results matching A.F.'s DNA.

¶6 On re-cross examination of A.F., defense counsel questioned her recollection of the times each incident occurred based on when her phone ran out of charge. He also questioned the position of A.F.'s underwear when Dominguez ejaculated.

¶7 Dominguez testified on his own behalf. During his testimony, he claimed he and A.F. vaped his medical marijuana early in the evening of August 12, 2018. This made him tired enough to fall asleep at "8:00 or 8:30" p.m. and stay asleep until the next morning. In addition, Dominguez claimed that although A.F.'s underwear tested positive for his DNA, the underwear in fact belonged to his ex-wife and he had kept the pair for sentimental reasons. Dominguez believed the underwear contained his DNA because his ex-wife had worn them during a sexual encounter which had occurred when they were still in a relationship. The defense produced a photo of Dominguez's ex-wife wearing underwear which resembled the pair tested for Dominguez's DNA. Dominguez alleged A.F. had found the underwear in Nesbitt's home and submitted the clothing to law enforcement as her own from the camping trip. On cross-examination, the State questioned Dominguez about statements he previously made to law enforcement where he did not explicitly deny having sex with A.F. because he claimed an inability to fully remember the night they camped. Dominguez did not recall the specifics of the statements he had made to the police, but denied having sex with A.F. while on the stand.

¶8 The State called Dominguez's ex-wife to rebut Dominguez's claim that the underwear belonged to her. She testified that she still possessed the underwear.

¶9 In closing, the State argued, "I want you to think about what both [A.F.] and [Dominguez] have said, look at the evidence, and make a determination as to which of them is telling the truth." The State summarized the testimonies of A.F. and Dominguez and characterized A.F.'s testimony as "consistent" and the "truth." The State further argued that it had met its burden of proof based on the DNA evidence from the underwear and that juries rely on similar evidence "all the time" and without the benefit "of an admission or [the conduct] being on camera." Defense counsel did not object to these statements or any other aspects of the State's closing argument. The jury found Dominguez guilty on all three counts of incest.

¶10 On April 28, 2021, the District Court imposed three concurrent sentences of sixty years each to the Montana State Prison, with ten years of each sentence suspended. Additionally, the District Court imposed conditions on Dominguez, including, relevant here, restrictions governing his access to and use of technology. On appeal, Dominguez objects to condition 43, which requires Dominguez obtain permission from the Montana Department of Correction's Adult Probation and Parole Bureau (Probation and Parole Bureau) before accessing the internet; condition 44, which requires Dominguez obtain permission from the Probation and Parole before possessing any device capable of accessing the internet; and condition 51, which prohibits the possession of a smartphone.

¶11 Dominguez argues he was denied his right to a fair and impartial trial, alleging the prosecutor impermissibly shifted the burden of proof and bolstered A.F.'s credibility by introducing inadmissible prior consistent statements. Further, he contends his trial counsel was ineffective for failing to object to these errors. In the alternative, he argues the District Court abused its discretion by imposing restrictions on his internet use at sentencing. We address these issues in turn.

¶12 Defense counsel did not object to the State's closing arguments. This Court generally will not address issues of "prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial." State v. Lawrence, 2016 MT 346, ¶ 6, 386 Mont. 86, 385 P.3d 968 (citation omitted). "However, we may exercise our discretion and review such issues under the plain error doctrine." Lawrence, ¶6; see also State v. Aker, 2013 MT 253, ¶21, 371 Mont. 491, 310 P.3d 506; State v. Lacey, 2012 MT 52, ¶ 14, 364 Mont. 291, 272 P.3d 1288; State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091. "The plain error doctrine is to be used sparingly, and only on a case-by-case basis." Lawrence, ¶ 6 (citing Hayden, ¶ 17). "The purpose of the plain error doctrine is to correct an error not objected to at trial that affects the 'fairness, integrity, and public reputation of judicial proceedings.'" Lawrence, ¶ 9 (quoting State v. Finley, 276 Mont. 126, 134, 915 P.2d 208, 213 (1996) overruled on other grounds State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817).

¶13 "If a prosecutor's improper comments prejudice a defendant's right to a fair trial, then the proper remedy is reversal." State v. Lindberg, 2008 MT 389, ¶ 25, 347 Mont. 76, 196 P.3d 1252 (quotation omitted). Determining whether improper comments prejudiced a defendant requires a two-step analysis. Lindberg, ¶25. "First, we determine whether the prosecutor made improper comments." Lindberg, ¶ 25 (citations omitted). "Second, we determine whether those comments prejudiced the defendant's right to a fair and impartial trial." Lindberg, ¶ 25 (citations omitted). The defendant has the burden to demonstrate that a prosecutor's improper comments, viewed in the context of the case in its entirety, prejudiced their right to a fair and impartial trial. State v. Wing, 2008 MT 218, ¶ 33, 344 Mont. 243, 188 P.3d 999.

¶14 Dominguez argues the State's closing argument diluted the State's burden of proving the elements of the offense beyond a reasonable doubt. Due process "protects the accused against conviction except upon proof beyond a reasonable doubt." State v. Favel, 2015 MT 336, ¶ 25, 381 Mont. 472, 362 P.3d 1126 (citing In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73 (1970)). Toward this end, Dominguez alleges that the State's assertion that "People get convicted of this sort of offense all the time without that evidence" further diluted the reasonable doubt standard by referring to facts not supported by evidence introduced at trial. A "prosecutor may not assert or comment on facts not in evidence." State v. Miller, 2022 MT 92, ¶ 23, 408 Mont. 316, 510 P.3d 17 (citations omitted). Here, when viewed in the context of the entire argument, we conclude the State's comments were an articulation of the standard of proof the jury would need to reach to convict, not a dilution of that standard.

¶15 Turning to Dominguez's claim that the State in its closing argument improperly commented on the veracity of A.F., we conclude the statements, while troubling, are not fatal to the State's case. "'Any trial counsel who invades the province of the jury by characterizing a party or witness as a liar or his testimony as lies, is treading on thin ice.'" Lindberg, ¶34 (quoting State...