State v. Smith

404 Mont. 245

488 P.3d 531

2021 MT 148

STATE of Montana, Plaintiff and Appellee,

v.Wesley SMITH, Defendant and Appellant.

DA 18-0187

Supreme Court of Montana.

Argued: February 17, 2021

Submitted: February 23, 2021

Decided: June 8, 2021

For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith (argued), Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Jonathan M. Krauss (argued), Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Wesley John Smith appeals his conviction of one count of Sexual Abuse of Children in violation of § 45-5-625, MCA. The Fourth Judicial District Court imposed a 100-year sentence to the Montana State Prison with eighty years suspended. Smith challenges the admission at trial of the alleged victim's taped forensic interview as improper hearsay; the prosecutor's closing arguments; and a condition in his sentence that requires Department of Corrections ("DOC") supervision through Global Positioning System ("GPS") monitoring for the remainder of his life. We affirm.

¶2 We restate the issues on appeal as follows:

1. Did the District Court misinterpret M. R. Evid. 801(d)(1) and abuse its discretion by admitting the victim's taped forensic interview as a prior consistent or inconsistent statement?

2. Did the prosecutor's closing arguments amount to plain error that entitles Smith to a new trial?

3. Is the requirement for GPS monitoring imposed by § 45-5-625(4)(b), MCA, facially unconstitutional under the Montana and United States Constitutions?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 17, 2016, Smith, his wife Katie, Katie's nine-year-old daughter E.G., and the couple's three younger sons planned to watch a football game at a local bowling alley. Katie left early to meet her brother at the bowling alley, leaving Smith to get the children ready and bring them separately. At the time, Smith and Katie were going through a contentious divorce. Katie nonetheless often would let Smith stay at the house she shared with her friend Charity and Charity's two children because Smith did not have a home of his own. Katie and Charity worked as exotic dancers, and Charity had a pole in her personal bedroom the two used for practice and for teaching dance and aerobics lessons. The day before the underlying incident occurred, Smith and Katie revealed to E.G. that Smith was not her biological father.

¶4 When Katie left for the bowling alley, E.G. was alone in her room watching videos on her computer while the three boys were in a downstairs room watching television. E.G. testified that Smith entered her room without knocking and told E.G. to go into Charity's room. There, Smith told E.G. to take off all her clothes besides her bra and underwear and spin around on the pole. E.G. told Smith she did not want to, but Smith told her to do it and said "it was okay because [E.G.’s] mom did it." Scared and upset by Smith's tone, E.G. complied with his demands. E.G. testified that while she spun around on the pole, Smith stood watching her in his underwear with his pants around his ankles, rubbing his fingers and thumb together and biting his lip. Smith did not touch E.G. while she was on the pole and kept his hands in the air, but E.G. testified that his penis got bigger. When asked about later telling her friend M.H. that he was "playing with himself," she said, "he wasn't, like, playing with it, playing with it. But he was, like, adjusting his underwear." Eventually, Smith told E.G. she could stop, thanked her, and said he "appreciated it." E.G. collected her clothes and ran to her bedroom.

¶5 Soon after, Smith gathered the boys and E.G. and drove them all to the bowling alley; roughly thirty minutes had elapsed since Katie left. E.G. did not tell her mother what happened, but the next day she told her friend M.H. about the incident. M.H. apparently told her school counselor about the incident, who then informed E.G.’s own school counselor, Chrystal Thompson-Tower. Thompson-Tower testified she did not specifically remember a call from M.H.’s counselor but had called E.G. into her office and asked E.G. to tell her what happened with Smith, which E.G. did. Thompson-Tower's notes from the meeting indicated that E.G. told her E.G.’s brothers were present in the room while Smith made her dance, but at trial E.G. denied she told Thompson-Tower this. Thompson-Tower reported the incident to the authorities and to Katie.

¶6 Katie took E.G. to First Step Resource Center, a children's advocacy center, several days later. Jane Hammett, a registered nurse and trained forensic interviewer, conducted an hour-long, video-recorded interview with E.G. During the interview, E.G. recounted the incident and discussed unrelated incidents between Smith and E.G.’s mother and brothers. Among other statements, E.G. told Hammett that her brothers were downstairs watching television when Smith had her spin on the pole.

¶7 Smith left Missoula on January 19—the same day E.G. told her school counselor about what happened—and moved in with his grandmother in Oregon. He would eventually be arrested in Oregon on an unrelated matter and spend time in jail before facing these charges in Montana.

¶8 The case went before a Missoula County jury in June 2017. The jury heard testimony from E.G., Katie, Thompson-Tower, Hammett, and the investigating officer. Katie testified that once she heard about what happened from the school, she approached Smith and—deliberately lying—told him that Charity had cameras recording in her bedroom. Katie stated that Smith, at that point, began profusely apologizing and stated that he deserved to die; she later received suicidal text messages from Smith. She further testified that after Smith moved away from the area, he periodically texted her and E.G. on their cellphones or tried to call them, expressing contrition about what happened, that he loved her, and more suicidal ideation. Some of these text messages and voicemails were introduced into evidence.

¶9 Thompson-Tower recounted her conversation with E.G. about the incident. On cross-examination, defense counsel questioned Thompson-Tower extensively on her notes from her conversation with E.G., specifically regarding whether E.G.’s brothers were present in the room while it occurred. Thompson-Tower testified that although she noted that E.G. said her brothers were present in the room when Smith made her dance on the pole, she was just "going off of what a little kid is telling [her]" and did not know what E.G. meant. Hammett testified to her observations of E.G. during the forensic interview, such as the details E.G. provided her and E.G.’s demeanor. The investigating officer, Connie Brueckner, watched E.G.’s forensic interview and interviewed E.G.’s friends and family. Brueckner testified that she fulfilled a similar role to Hammett as a neutral factfinder. In Brueckner's opinion, E.G.’s testimony and statements in the forensic interview had the normal amount of "variation" that occurs when a "[story is] told to different people who are asking different kinds of questions" and generally seemed reliable. On cross-examination, Brueckner testified regarding her interview with M.H., in which M.H. said that E.G. told her Smith was playing with himself during the incident. Smith did not voice any hearsay objections to these witnesses’ testimony.

¶10 During the lunch recess after Hammett's testimony, the State informed the judge that it sought to introduce E.G.’s video recorded forensic interview because "the defense's main theme ... is that [E.G.] made this up" and it was "important for the jury to see [E.G.’s] demeanor, particularly given the fact that this event happened so long ago and that she's had to retell it so many times ... particularly when her credibility's being attacked." The State argued that the recording was admissible as "a prior consistent statement for a witness [for whom the defense has] pointed out ... inconsistencies." The defense objected, and the District Court considered the matter, eventually allowing the recording to be admitted. Smith filed a motion to reconsider. The District Court issued an order affirming that under M. R. Evid. 801(d)(1)(B) the video was admissible as a prior consistent statement; to the extent there were any inconsistencies in the video, the video was admissible under M. R. Evid. 801(d)(1)(A) as a prior inconsistent statement; or that it was admissible as a mix of the two. The State played a redacted version of the video recording for the jury and rested its case.

¶11 The first and only witness in his case-in-chief, Smith testified that as he was getting the boys ready to go to the bowling alley, he went into E.G.’s room to tell her to get ready to go. As the boys were getting ready, he went back upstairs and found E.G. in Charity's room playing, not dancing, on the pole. Smith testified that he grabbed some of his clothes from Katie's room and headed towards the bathroom but stopped again in front of Charity's room to tell E.G. again to get ready. According to Smith, he quickly changed into new pants while he stood in the doorway. Smith stated further that he never told E.G. to take all her clothes off, only that she needed to change out of the dirty sweater and spandex shorts she was wearing before they went to the bowling alley. Smith testified that after he said this, E.G. became very upset because that was her favorite sweater and she wanted to wear it. He then told E.G. that she should not be in Charity's room without her permission. Smith stated that after this exchange he went downstairs to finish getting the boys ready, went back upstairs, saw that E.G. was properly dressed, and they all went to the bowling alley together.

¶12 Smith objected once during the State's closing argument when the prosecutor began discussing the video interview. The trial court did...