State v. Pitkanen

410 Mont. 503

520 P.3d 305

STATE of Montana, Plaintiff and Appellee,

v.Benjamin PITKANEN III, Defendant and Appellant.

DA 20-0474

Supreme Court of Montana.

Submitted on Briefs: September 21, 2022

Decided: November 15, 2022

For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Jonathan M. Krauss, Assistant Attorneys General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Amanda Lofink, Deputy County Attorney, Great Falls, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Benjamin Pitkanen III appeals from the judgment entered by the Eighth Judicial District Court after jury trial finding him guilty of the charge of Assault with a Weapon, a felony. He challenges trial evidentiary rulings and the calculation of credit toward his sentence for time served. We consider:

1. Did the District Court err by admitting the victim's hospital statement at trial as a prior inconsistent statement?

2. Did the District Court err by admitting evidence of a conversation between the Defendant and his girlfriend as an admission by party-opponent?

3. Did the District Court err in its calculation of Defendant's credit toward his sentence for time served?

¶2 We affirm in part, reverse in part, and remand for entry of an amended judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On March 24, 2019, Karson Bird and his friend, Justin Newbreast, visited Erin McCoun-Larocque's home on 13th Street in Great Falls, Montana. The group was drinking, with Bird having consumed about five shots of vodka over a period of roughly 30 minutes. He testified to being "buzzed" from the drinks, but otherwise aware of his surroundings. Newbreast and McCoun-Larocque were sitting on couches, while Bird was sitting in a recliner, sketching and trying to connect to Wi-Fi, when Pitkanen entered the home. After a brief greeting between Pitkanen and McCoun-Larocque, a physical altercation occurred between Pitkanen and Bird involving pushing, hitting and Pitkanen wrapping his arms around Bird. The men were separated, and Bird and Newbreast left to find a ride to the hospital.

¶4 Bird presented to a local hospital bleeding from two wounds to his back and a minor wound to his face. Law enforcement was contacted by medical staff. Officer Formell and Officer Kinsey interviewed Bird and Newbreast, both of whom told the officers they had been walking down an alley when an unidentified assailant demanded Bird's backpack. When Bird refused, he was stabbed twice in the back before the assailant fled. Officer Formell recorded part of this conversation, wherein he asked about the backpack, the contents of the backpack, and the alleged assailant.

¶5 After receiving these statements, the officers stepped out of the room, leaving Bird, Newbreast, and Bird's mother, who had just arrived, alone for about 15-20 minutes. Believing the statements given by Bird and Newbreast were not the truth, the officers re-entered the room and, again recording the conversation, interviewed Bird a second time. Bird changed his story, stating Pitkanen had stabbed him during an altercation at McCoun-Larocque's house. Bird said Pitkanen had tried to "punk him out" by saying "get up, move" while Bird was seated in the recliner. When Bird began to gather up his things, Pitkanen asked, "what are you doing," to which Bird answered, "what does it look like I'm doing?" Bird related that Pitkanen then punched him, pushed and stabbed him, and then fell into a table, wherein Pitkanen had cut his hand. Bird said he did "not really see" the knife, and that he did not realize he had been stabbed "until I felt, like, it leaking."

¶6 Officers arrested Pitkanen several days later, finding no knives or weapons, but noting a laceration on his left palm for which he was treated prior to being taken to jail. He was charged with Assault with a Weapon pursuant to § 45-5-213(1)(a), MCA.

¶7 Before trial, believing Bird would be unavailable to testify, the State took Bird's deposition. However, Bird appeared and testified, explaining that his initial story to officers had been a lie he had told to avoid getting Pitkanen in trouble. He testified that, after he met privately with his mother and Newbreast, he decided to tell the police what had really happened. When asked what he had then told the officers, Bird said he could not remember the entirety of his statement, but when asked what he remembered, he responded:

I just told them that – like what happened, like that I was sitting on the chair in Erin's house, and Ben came – come into the door and went back to the back room, grabbed his shoes, and came right to me when there was like several other seats open to sit on the couch, or – but he came to me and tried to tell me to get up and it's his chair. And he said it in a type of way that was disrespectful

The prosecutor then interjected, "Hold on a second. ... You said [Pitkanen] said it in a type of way that was disrespectful?" Bird answered affirmatively, and explained that Pitkanen told him to "[g]et the fuck up. This is my chair. This is my spot," and, "Get up." When asked how he responded, Bird said he told Pitkanen, " ‘Fuck that. I ain't gonna get up. Like. I just said, like, ‘You ain't gonna punk me out.’ "¹ Bird then stated, "[w]hen he threw his shoes and hit me in the face, that's when I jumped up and pushed him back."

¶8 Bird then gave an account of the altercation, the stabbing, and his exit from the house with Newbreast. The State moved to introduce the video testimony from the hospital recordings. Defense counsel did not object to video Exhibit 16, which contained Bird's first account, but objected to video Exhibits 17 and 18, which contained Bird's second hospital account, on the ground it was improper bolstering of testimony by a similar, or consistent, prior statement. The District Court overruled the Defense's objection, reasoning it was "admissible as a prior inconsistent statement."

¶9 During Detective Mahlum's testimony, the State asked him to relate part of a recorded phone conversation between Pitkanen, who was then in jail, and Pitkanen's girlfriend, Ms. Klein. The Court overruled the defense's hearsay objection, stating "I find conclusively this constitutes an admission of a party opponent for rule purposes," but made no evidentiary ruling that Pitkanen had adopted Klein's statement as his own in the conversation. Detective Mahlum testified:

Ms. Klein speaks with Mr. Pitkanen and indicates – her statement is something to the effect of: ‘It's my fault that you stabbed,’ – I don't recall if it was Karson or – but, ‘It was my fault that you stabbed him,’ something to that effect. Mr. Pitkanen then responds, ‘No, baby. Don't worry about it. It wasn't your fault,’ something to that effect. I don't recall the exact verbatim of the statement.

¶10 The jury found Pitkanen guilty, and he was sentenced to 40 years with 20 years suspended. Pitkanen had been incarcerated for 492 days between his arrest and sentencing, but the District Court determined he was entitled credit for only 223 days of incarceration, based upon the number of days from his arrest in this matter to his sentencing in another matter.

¶11 Pitkanen appeals trial evidentiary rulings and the sentence credit for time served.

STANDARD OF REVIEW

¶12 This Court reviews evidentiary rulings for an abuse of discretion. State v. Oliver , 2022 MT 104, ¶ 18, 408 Mont. 519, 510 P.3d 1218 (citing State v. Smith , 2021 MT 148, ¶ 14, 404 Mont. 245, 488 P.3d 531 ). An abuse of discretion occurs when a court "acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice." Oliver , ¶ 18. Further, a court's evidentiary rulings must be supported by rules and principles of law, and as such, when an evidentiary ruling is based on conclusions of law, this Court is tasked with determining whether the court correctly interpreted the law. State v. Smith , 2021 MT 148, ¶ 14, 404 Mont. 245, 488 P.3d 531. This Court reviews a district court's sentence de novo for legality. State v. Mendoza , 2021 MT 197, ¶ 8, 405 Mont. 154, 492 P.3d 509. A sentence is legal if "it falls within the parameters set by applicable sentencing statutes and if the sentencing court adheres to the affirmative mandates of those statutes." Mendoza , ¶ 8.

DISCUSSION

¶13 1. Did the District Court err by admitting the victim's hospital statement at trial as a prior inconsistent statement?

¶14 Pitkanen argues the District Court erred by overruling his hearsay objection to video Exhibits 17 and 18, which captured Bird's second hospital statement to police, and admitting them as a prior inconsistent statement, because the videos were actually consistent with Bird's trial testimony. Because no foundation was laid for admission of the exhibits as a prior consistent statement, see Smith , ¶ 19, Pitkanen argues the videos served only to improperly bolster Bird's testimony. The State argues the District Court properly admitted these videos as an intertwined consistent and inconsistent statement. See State v. Howard , 2011 MT 246, ¶ 31, 362 Mont. 196, 265 P.3d 606 (citing State v. Lawrence , 285 Mont. 140, 948 P.2d 186 (1997) ) ("it was not an abuse of discretion for the District Court to admit consistent statements along with inconsistent ones where the nature of the witness's testimony made it difficult for the court to separate the consistent from the inconsistent portions of the prior statement").²

¶15 As the State notes, Bird made a number of statements at trial that he did not make in the prior recorded hospital statement, and vice versa. However, as we have explained, "simply because [the victim] mentioned certain facts in [a prior] forensic interview that she did not mention at trial, or vice-versa," does not render the prior statement inconsistent to the witness's trial testimony. Smith , ¶ 31. A...