State v. Rowe

543 P.3d 614

2024 MT 37

STATE of Montana, Plaintiff and Appellee,

v.Daniel Christopher ROWE, Defendant and Appellant.

DA 22-0547

Supreme Court of Montana.

Submitted on Briefs: August 16, 2023

Decided: February 27, 2024

APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. DDC-2020-32, Honorable Christopher D. Abbott, Presiding Judge

For Appellant: Colin M. Stephens, Stephens Brooke, P.C., Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Cory Swanson, Broadwater County Attorney, Townsend, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Daniel Christopher Rowe (Rowe) appeals his conviction for sexual assault, a felony, from the First Judicial District Court, Broadwater County. We reverse and remand for a new trial.

¶2 We restate the dispositive issues as¹:

¶3 1. Whether the District Court erred in admitting a subsequent uncharged act of sexual assault as proof of motive or plan to commit several earlier sexual assaults charged pursuant to a "common scheme."

¶4 2. Whether the jury instruction allowing the jury to select a conduct-based or result-based mental state definition violated Rowe’s right to due process.

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On July 31, 2021, the State charged Rowe with one Count of sexual assault of H.B., who was under sixteen years of age at the time of the offense. Rowe, who was married to H.B.’s older sister, Mari, was a father-figure to H.B. H.B. had not seen his father since he was 5 years old and would spend a lot of time with the Rowe family. Rowe and Mari had four children of their own-two sons and two daughters. Out of concern for his nephews’ safety, H.B. disclosed Rowe’s abuse several years later after learning that Rowe was requesting additional parenting time with his nephews, and not asking for similar time with his nieces. H.B. disclosed multiple instances of abuse, which occurred in different counties over a period of several years.

¶6 H.B. reported that the first assault he recalled occurred in Townsend in 2008 when H.B. was eleven years old. Rowe asked H.B. about his private parts and how H.B. felt about them. H.B. showed Rowe his private parts, but Rowe did not touch them at that time. Rowe would wrestle with H.B. in his underwear and when H.B. would lie on his stomach on the floor, Rowe laid on top of him, humping against H.B.’s back.

¶7 In the summer of 2012, H.B. went to the Helena Wingate with Rowe and his family. When H.B. was alone with Rowe on the bed, Rowe touched H.B.’s penis through his underwear. During another incident at the Wingate, H.B. came out of the shower while Rowe was sitting on the bed. Rowe put H.B.’s penis in his mouth and told H.B. not to tell anyone.

¶8 In the fall of 2012, Rowe took H.B. on a hunting trip to White Sulphur Springs where they stayed at the hotel at the hot springs. H.B. shared a bed with Rowe and when they were in bed Rowe began fondling H.B.’s penis. H.B. explained to Rowe it was wrong but Rowe assured him it was fine.

¶9 The final incident occurred in Lewistown in 2013 after H.B. had turned sixteen. Rowe and H.B. stayed in the guest house of some friends. When both were in bed, Rowe rubbed H.B.’s penis and then made H.B. rub Rowe’s. H.B. explained it was wrong and "gay." Rowe assured H.B. that it was not gay.

¶10 In 2017, Rowe sought a divorce from Mari because he no longer wanted to hide the fact that he was gay. In January 2020, Rowe texted Mari asking for more time alone with their sons. When H.B. learned of this, he told Mari about Rowe’s abuse. Mari obtained a protective order and H.B. contacted Child and Family Services, who referred the matter to the Broadwater County Sheriff's Office. Rowe was interviewed by police and denied the accusations. The State charged a single count of sexual assault and alleged that all of the incidents, except that occurring in Lewistown, were done pursuant to a common scheme.

¶11 Rowe’s trial began on December 13, 2021. The incident that occurred in Lewistown happened when H.B. was over sixteen and the State advised it would not include the Lewistown incident in the charges but nonetheless considered it admissible evidence. Rowe filed a motion in limine to exclude evidence of the Lewistown incident. The District Court denied the motion, finding the evidence was relevant for purpose and motive under Rule 404(b) and that its risk of prejudice was low considering it involved the same victim and type of conduct of the three incidents alleged pursuant to a common scheme.

¶12 H.B. testified about all the incidents, including the uncharged Lewistown incident. H.B. testified Rowe assaulted him on a hunting trip in Lewistown and gave many details about the house where they stayed and the surrounding area. On cross-examination, defense counsel questioned H.B.’s memory regarding details of the incident. The State presented three more witnesses regarding the Lewistown incident: Konnie Birdwell, the owner of the Lewistown house; James Matthews, a youth pastor who was on the hunting trip in Lewistown with H.B. and Rowe; and Officer Honeycutt, who interviewed H.B. about the Lewistown incident and investigated it. Birdwell testified about the details of the house, and Matthews testified about the trip and the house, though neither spoke to the incident itself. Rowe’s counsel objected to the testimony based on M. R. Evid. 402, 403, and 404. All objections were overruled by the court. Before Officer Honeycutt’s testimony, defense counsel requested a sidebar conference and objected to the continuing evidence regarding the Lewistown incident. The Court allowed the testimony from Officer Honeycutt and provided a cautionary instruction to the jury that Rowe could not be convicted based on the Lewistown incident. Officer Honeycutt then gave testimony about H.B.’s demeanor during the interview and the details of the house where the alleged incident occurred. Defense counsel objected to Honeycutt saying H.B. appeared "truthful" and "calm" in his interview. The Court sustained these objections and instructed the jury that only they could determine the credibility of the witnesses.

¶13 During the settling of jury instructions, the State and Rowe disagreed about which definition of knowingly to give to the jury. The State proposed an instruction with both the conduct-based and result-based definition of knowingly, while Rowe wanted just the conduct-based instruction. The Court decided to use the State’s instruction which read: "A person acts knowingly when the person is aware of his or her conduct, or when the person is aware there exists the high probability that the person’s conduct will cause a specific result." Rowe objected to the use of this instruction.

¶14 Prior to the jury’s deliberation, the court mentioned there was an event in Townsend the next day that some jurors wanted to attend, and they would likely break deliberations by five the next day and continue in the morning. After all the testimony had been given, the court stated to counsel "we’ll have to come back and do deliberations tomorrow unless the one juror decides she’d rather power through tonight." After the jury had been given instructions and sent to deliberate for several hours, the court reconvened the jury, the State, and defense counsel for a discussion about whether to break for the evening and continue deliberations tomorrow so that some jurors could attend a children’s Christmas concert. The court stated it did not instruct defense counsel to summon Rowe given the nature of the inquiry. After the jurors gave their opinions, the court discussed the matter privately with counsel. The State proposed letting the jury go for the concert and then bringing them back for deliberation. Defense counsel objected to bringing the jurors back that evening. After reconvening, the jurors collectively decided to skip the break and continue deliberations that evening.

¶15 The jury found Rowe guilty of sexual assault on a minor.

STANDARD OF REVIEW

[1–3] ¶16 A trial court’s decision on whether to admit evidence of other crimes, wrongs, or acts under M. R. Evid. 404(b), is directed to the relevance and admissibility of such evidence and thus reviewed for an abuse of discretion. State v. Crider, 2014 MT 139, ¶ 14, 375 Mont. 187, 328 P.3d 612. An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. State v. Madplume, 2017 MT 40, ¶ 19, 386 Mont. 368, 390 P.3d 142. To the extent an evidentiary ruling is based on an interpretation of an evidentiary rule or statute, our review is de novo. State v. Lacey, 2010 MT 6, ¶ 12, 355 Mont. 31, 224 P.3d 1247.

[4–7] ¶17 We review a district court’s jury instructions in a criminal case to assess whether the instructions, when considered as a whole, fully and fairly instructed the jury on the applicable law. State v. Ragner, 2022 MT 211, ¶ 13, 410 Mont. 361, 521 P.3d 29. We will only reverse if the district court abused its discretion in a way that prejudicially affected a defendant’s substantial rights. Ragner, ¶ 13. "If the instructions are erroneous, in some aspect, the mistake must prejudicially affect the defendant’s substantial rights in order to constitute reversible error." State v. Deveraux, 2022 MT 130, ¶ 20, 409 Mont. 177, 512 P.3d 1198. Jury instructions that relieve the State of its burden to prove each element of an offense violate a defendant’s right to due process. State v. Hamernick, 2023 MT 249, ¶ 13, 414 Mont. 307, — P.3d — (citing State v. Miller, 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625).

DISCUSSION

¶18 1. Whether the District Court erred in admitting a subsequent uncharged act of sexual assault as proof of motive or plan to commit several earlier sexual assaults charged pursuant to a "common scheme."

¶19 In 2021, the State...