State v. McCoy

2021 MT 303

STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL JOSEPH McCOY, Defendant and Appellant.

No. DA 20-0066

Supreme Court of Montana

November 23, 2021

Submitted on Briefs: October 27, 2021

District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC 18-709 Honorable John W Parker, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal Assistant Appellate Defender, Helena, Montana.

For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana.

Joshua A. Racki, Cascade County Attorney, Susan Weber, Stephanie Fuller, Deputy County Attorneys, Great Falls, Montana.

OPINION

Jim Rice Justice.

¶1 Michael Joseph McCoy (McCoy) was convicted in the Eighth Judicial District Court, Cascade County, of Criminal Distribution of Dangerous Drugs, § 45-9-101, MCA, and Endangering the Welfare of a Child, § 45-5-622(3)(c), MCA. He appeals his drug offense conviction, contending the State presented insufficient evidence for the jury to find him guilty. He also asserts the District Court deprived him of his right of allocution during his sentencing hearing.

¶2 We restate the issues as follows:

1. Did the State present sufficient evidence for the jury to convict McCoy of criminal distribution of dangerous drugs?

2. Did the District Court deny McCoy an opportunity for allocution at his sentencing hearing in violation of § 46-18-115, MCA, and his right to due process?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

McCoy's Charges and Jury Trial

¶4 L.B., a minor, lived with defendant McCoy in his Great Falls home as a baby when his maternal grandmother, Mary Marceau (Marceau), was in a relationship with McCoy, who L.B. grew up calling "Grandpa."^[1] When L.B. was about two years old, Marceau and McCoy parted ways, and for a long period thereafter L.B. lived separately with Marceau who acted as his guardian. Nancy Brown (Brown), who is L.B.'s mother and Marceau's daughter, also lived in McCoy's home as a teenager and grew up knowing McCoy as her stepfather. Brown had a long-term struggle with drug addiction, primarily using heroin but also methamphetamine (meth). Due to Brown's addiction and lifestyle, Marceau prohibited Brown from living with her and L.B. However, McCoy allowed Brown to move back into his home in 2015.

¶5 Brown testified that when she returned to live with McCoy, McCoy and his house had drastically changed from the time she lived there growing up. She remembered him previously as being "strict," but by 2015, "He was the total opposite. Everything that he would . . . get mad about me or talk about me doing, he was doing. I mean, I was shocked." What McCoy had started "doing" was using drugs. "[H]e was too nice of a person letting people walk all over him. He was losing his things," Brown said. "[H]e was going about everything the wrong way. We all were, because of drugs." Living with McCoy facilitated Brown's drug addiction. In 2017, L.B. was thirteen years old and living with Marceau only a block from McCoy's house, with Brown occupying McCoy's basement.

¶6 In August 2018, a detective conducted a forensic interview with L.B. at the Child Advocacy Center. L.B. told the detective that McCoy exposed him to and provided him with meth between June 2017 and September 2018, during which time he was a regular visitor to McCoy's home. Detective Robert Lopez (Lopez) observed the forensic interview with L.B., and thereafter visited with Brown, who was then attending an addiction treatment center, about L.B.'s allegations, which she confirmed. In October 2018, McCoy was arrested and charged with Criminal Distribution of Dangerous Drugs, a felony (Count 1), and Endangering the Welfare of a Child, a felony (Count 2).^[2] Brown was also charged as McCoy's co-defendant.

¶7 At McCoy's jury trial, L.B. testified that the first time he returned to McCoy's home as a teenager in 2017, he was attempting to visit Brown, but surprised her and her boyfriend in the basement as they were about to shoot up heroin. L.B. left the basement, went upstairs, and reunited with McCoy, who he found sitting in his favorite chair in the living room with several guests. The guests were sitting on couches passing around a meth pipe, but L.B. did not see McCoy smoke at this time and did not then participate in the drug use. After L.B., thirteen years old and in seventh grade, had been going to McCoy's house almost daily after school for a period of six months, a guest there showed him how to smoke meth and he used the drug for the first time. Thereafter, L.B. began smoking meth regularly at McCoy's home. L.B. testified concerning the first time he smoked with McCoy: "I just asked him [(McCoy)] if I could see his pipe. And I loaded it, handed it back to him, and then we just passed it around." L.B. testified that McCoy's pipe or "loke" was clear-colored, "long glass, ball at the end, hole on top of the ball."

¶8 L.B. identified McCoy's favorite chair and the surrounding couches in the State's photo exhibits and testified that McCoy sat in his chair "[a]ll the time. That was his chair." L.B. testified McCoy would sit in the chair when they smoked meth together. For a period of three to four months, McCoy and L.B. smoked together "at least twice a day," always loading and passing McCoy's clear pipe between them. L.B. described the substance they smoked as "crystals" or "powder," and that it was stored in "baggies." L.B. testified that there were other people at McCoy's house continuously, and that he was present while McCoy sat in his chair with up to six other people on the surrounding couches in the living room smoking meth. The State inquired further about McCoy's house guests:

Prosecutor: Where did the drug use come in? Were they there -

L.B.: - they were there for a spot to, you know, hang out for a little bit and for them to hang out there that would, you know, get them high.

Prosecutor: So it was kind of like a - was it a safe house where you -

L.B: Yeah.

Prosecutor: - could go and use your drugs?

L.B.: Yeah.

Prosecutor: Did [McCoy] have any specifications about the people that he let into the house?

L.B: No.

Prosecutor: So he would just let anybody in?

L.B: Oh. Well, not really anybody. Maybe if - it would be my mom's friends or just his friends, yeah. But not just anybody would just go over there. It was people he knew.

¶9 When he smoked meth, L.B. reported feeling "good," "more awake," "like [he] could do anything [he] wanted." McCoy suffered from persistent hip pain and other health issues, but L.B. testified that, when McCoy smoked, he "wouldn't be sick [any] more. He'd be normal, sitting in his chair. He'd be good." L.B. testified, "Every time I had [meth], and if [McCoy] was sick, I would ask him if he wanted to smoke." There were drugs at McCoy's home "most of the days" L.B. was there, and when he did not get meth from McCoy, he bought it with money he obtained through stealing. However, he consistently took the drugs to McCoy's house to use.

¶10 L.B. testified to feeling scared when the police would show up at McCoy's house with warrants looking for people, and sometimes arrest other house guests while L.B. was present. He reported that "a lot [of the people at McCoy's house] always went to jail." He felt like he needed to act "like an adult" and "like someone [he] wasn't" while at McCoy's house because he was surrounded by older people and drug users. On three to five occasions he acted as a "middleman" between McCoy and his teenage friends, exchanging their money with McCoy for meth. L.B. recounted one occurrence when his friend gave him ten dollars to give to McCoy, who in return gave the teenagers his pipe loaded with meth and instructed them to smoke it in the bathroom.

¶11 L.B. testified McCoy never asked him or any of his guests to leave, and that he and Brown were the ones to require that people leave when McCoy fell asleep in his chair, "so nobody stole [his] stuff or went through [his] stuff while he was sleeping." L.B. also testified that, after "essentially living there" for weeks at a time, he would sometimes "get kicked out," but "[he'd] always be able to come back." When questioned by the defense, L.B. denied that McCoy ever asked him not to come to his house, clarifying that he only "snuck in" when bringing other kids over to hang out in the basement. He acknowledged his mother, Brown, asked him not to hang around the house and the people there, but that he did not obey her "[b]ecause I didn't care at the moment. I was under the influence, and I just didn't care."

¶12 Brown testified after L.B. At the time of trial, she was still a charged co-defendant with McCoy and incarcerated at the Cascade County Detention Center.^[3] Brown testified L.B. had been "coming around" McCoy's home when she was living in his basement in 2017 and 2018. She worried about L.B. being in that environment, but her own drug use impeded her ability to direct her son:

[L.B.] needed to be out of there, and I told him he needed to. But then again, when he needed a place to stay, I let him come there. I would never push him away or whatever. I knew it was bad for him . . . Also, other times too, when he was in the house, like, I was downstairs, he'd be upstairs. I didn't have no control. I know we didn't want him there, but he was there.

Brown testified she overheard McCoy telling L.B. that he did not want L.B. "hanging around at the house." She had spoken with McCoy, and they agreed his home was a dangerous place for L.B. However, they both still allowed him to be there and to associate with drug users and dealers.

¶13 Brown confirmed that McCoy spent his time upstairs on the main floor, primarily in his...