State v. Stutzman

388 Mont. 133

398 P.3d 265

2017 MT 169

STATE of Montana, Plaintiff and Appellee,

v.Michael Robert STUTZMAN, Defendant and Appellant.

DA 15-0394

Supreme Court of Montana.

Submitted on Briefs: March 8, 2017

Decided: July 6, 2017

Rehearing Denied July 6, 2017

For Appellant: Chad Wright, Chief Appellant Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, Christopher Morris, Mary Leffers Barry, Deputy County Attorneys, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Michael Stutzman appeals his conviction of sexual assault against R.W., the eight-year-old daughter of Stutzman's former girlfriend, Angela. The jury acquitted Stutzman of a separate charge against K.W., R.W.'s twin sister. The court later denied Stutzman's motion for a new trial and sentenced him to prison.

¶2 We address the following issues on appeal:

1. Whether the prosecutor violated Stutzman's right to a fair trial by telling the jury in closing argument that, in order to find Stutzman not guilty, it would have to conclude that R.W. and K.W. had lied during their testimony;2. Whether the District Court committed plain error when it failed to give a specific unanimity instruction to the jury on the sexual assault charge after R.W. testified to two alleged sexual assaults; and

3. Whether the District Court erred in not disclosing to the defense information from the medical and counseling records that it reviewed in camera.

¶3 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 Stutzman began living with Angela, R.W., and K.W. in May 2013. Shortly after he moved in with them, R.W. and K.W. both disclosed to their mother and their school counselor, Tara Sylvester, that Stutzman had inappropriately touched them. The police arrested Stutzman, and the State charged him with felony sexual assault against R.W. and felony sexual intercourse without consent against K.W.

¶5 R.W. testified at trial that Stutzman had touched her inappropriately on two occasions. The first incident occurred while R.W. was sitting on Stutzman's lap at home. She stated that Stutzman touched her "in the wrong places," which she described as her "private areas." R.W. told her mother that Stutzman had touched the inside of her thigh, which made her feel "weird." Angela addressed the matter with Stutzman, who was apologetic but denied that anything inappropriate occurred.

¶6 The second incident occurred in a tent in the family's backyard over Memorial Day weekend. R.W. had invited several friends for a sleepover, and Stutzman volunteered to sleep in the tent with the children to supervise them. R.W. claimed that during the night Stutzman "put his hands in [her] pants and started rubbing [her] in the wrong place." She explained that Stutzman had touched her "private area," her "cover-up area," or where she goes "pee." K.W. testified that, sometime during the same weekend, Stutzman had penetrated her vagina with his finger while she was sleeping. K.W. told R.W. the next morning what happened, and R.W. said they needed to tell their mom.

¶7 After R.W. and K.W. told their mother about these incidents, Angela kicked Stutzman out of the house. The children then spoke with Sylvester. Sylvester testified at trial that the children had received counseling services prior to the May 2013 incidents because they met the criteria for being "seriously emotionally disturbed." R.W. suffered from "ADHD and oppositional defiant behaviors," and K.W. suffered from "ADHD and anxiety disorder." Based on her discussions with the children, Sylvester believed that Stutzman had sexually abused them, and she contacted the police.

¶8 Shortly before trial, Stutzman sought a continuance in order to obtain additional medical and counseling records concerning the girls. The court conducted an in camera review of the children's medical records from the Billings Clinic and of their counseling records from Altacare, Sylvester's employer. The court concluded that the records contained no exculpatory evidence of Stutzman's behavior. It declined to disclose any of the records, and trial proceeded as scheduled.

¶9 Stutzman's theory at trial was that R.W. and K.W. had fabricated their allegations in order to get him out of the house. During closing argument, defense counsel referred to Angela's testimony, stating, " ‘If we get him out of here, we're golden,’ that's what mom said. Those words just jump out at you, because they provide a motive for these girls to tell the stories that they did." He suggested that the girls did not understand the repercussions of their alleged lies about Stutzman, stating that "part of the understanding whether or not they have to tell the truth is an understanding of what happens if they don't. They know that they'll get in trouble, but do they know the consequences of what could happen to this person, to Mike? Do they truly understand that?" In the State's rebuttal argument, the prosecutor said, "A not guilty verdict means you don't believe [K.W.] and [R.W.]. It means you think they're lying." Stutzman objected, saying, "That's not what that means." The court replied, "It's closing argument." The prosecutor continued her argument without further comment on the point.

¶10 The court instructed the jury that it must unanimously "agree that the defendant is either guilty or not guilty in order to reach a verdict." It provided a definition of sexual assault and listed the elements of sexual assault that the State was required to prove. It did not instruct, however, that the jury had to agree unanimously on at least one specific criminal act that Stutzman had committed in order to convict him of sexual assault. Stutzman neither objected to the court's instructions nor offered a specific unanimity instruction.

¶11 The jury found Stutzman not guilty of sexual intercourse without consent against K.W. and found him guilty of sexual assault against R.W. Stutzman moved for a new trial on the sexual assault conviction, arguing that the State's comment during its rebuttal closing argument was so improper and prejudicial that it violated his constitutional right to a fair trial.

¶12 The court denied Stutzman's motion for a new trial. It reasoned, "Once defense counsel argued that the victims had a motive to lie and did not understand the repercussions of their alleged lies, rebuttal by the State was not prejudicial in the comments of the prosecutor. No error attaches when the prosecutor's actions are provoked by defense counsel." The court reasoned that Stutzman provoked this comment by referencing the motive of the victims to lie—to get Stutzman out of the house. The court sentenced Stutzman to twenty-five years in prison with twenty years suspended and required that he be designated as a Level 2 Sexual Offender.

STANDARDS OF REVIEW

¶13 We generally review a district court's decision to grant or deny a motion for new trial for an abuse of discretion. State v. Morse , 2015 MT 51, ¶ 18, 378 Mont. 249, 343 P.3d 1196. We likewise review a district court's decision regarding jury instructions for an abuse of discretion, so long as the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Dobrowski , 2016 MT 261, ¶ 6, 385 Mont. 179, 382 P.3d 490. When a defendant raises the plain error doctrine to request our review of issues that the defendant did not raise before the district court, our review is discretionary. State v. Daniels , 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224. We review a district court's grant or denial of discovery for an abuse of discretion. State v. Duffy , 2000 MT 186, ¶ 18, 300 Mont. 381, 6 P.3d 453.

DISCUSSION

¶14 1. Whether the prosecutor violated Stutzman's right to a fair trial by telling the jury in closing argument that, in order to find Stutzman not guilty, it would have to conclude that R.W. and K.W. had lied during their testimony .

¶15 Stutzman asserts that the prosecutor's argument "diluted the presumption of innocence and shifted the burden of proof" to him. He argues that it constituted prosecutorial misconduct and that it was highly prejudicial, entitling him to a new trial.

¶16 The Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee criminal defendants the right to a fair trial. State v. Hayden , 2008 MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091. To determine whether a defendant is entitled to a new trial by reason of prosecutorial misconduct, we consider "whether the prosecutor's comments were improper" and whether they "prejudiced the defendant's right to a fair trial." State v. Pierce , 2016 MT 308, ¶ 24, 385 Mont. 439, 384 P.3d 1042 (citing State v. Lindberg , 2008 MT 389, ¶ 25, 347 Mont. 76, 196 P.3d 1252 ).

¶17 The burden is on the defendant to show that the prosecutor's improper comments prejudiced his right to a fair trial. Lindberg , ¶ 25. In determining whether prejudice occurred, we view the improper comments "in the context of the case in its entirety." Lindberg , ¶ 25. "We evaluate a prosecutor's statements during closing argument in the context of the argument as a whole." State v. Walton , 2014 MT 41, ¶ 13, 374 Mont. 38, 318 P.3d 1024 ; accord State v. Martin , 2001 MT 83, ¶ 68, 305 Mont. 123, 23 P.3d 216 (holding that a prosecutor's improper comments were not prejudicial "in light of all the surrounding circumstances, including the context in which the remarks were made").

¶18 Stutzman argued in closing that R.W. and K.W. fabricated the allegations against him as a way to get him out of their home, and he questioned the children's ability to understand the repercussions of lying. The prosecutor began her rebuttal argument by discussing reasonable doubt and the State's burden of proof. She proceeded to discuss the evidence, responding to defense counsel's arguments....