State v. Welch

544 P.3d 225

2024 MT 42

STATE of Montana, Plaintiff and Appellee,

v.Christopher Michael WELCH, Defendant and Appellant.

DA 22-0030

Supreme Court of Montana.

Submitted on Briefs: October 18, 2023

Decided: March 5, 2024

APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DC-20-14, Honorable Matthew J. Wald, Presiding Judge

For Appellant: James M. Siegman, Attorney at Law, Jackson, Mississippi

For Appellee: Austin Knudsen, Montana Attorney General, Christine Hutchison, Assistant Attorney General, Helena, Montana Alex Nixon, Carbon County Attorney, Red Lodge, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Christopher Michael Welch (Welch) appeals his conviction for attempted incest, incest, sexual abuse of children, and unlawful restraint, entered in the Twenty-Second Judicial District Court, Carbon County. We affirm.

¶2 We restate the issues on appeal as follows:

1. Do Welch’s unpreserved claims of prosecutorial misconduct warrant plain error review?

2. Did the District Court abuse its discretion when it imposed conditions of supervised release prohibiting Welch from using alcohol, frequenting bars and casinos, and gambling?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Welch began dating J.P.’s Mother (Mother) in 2018 after they met on social media. At the time, Mother had three daughters, including J.P. Welch and Mother had a tumultuous relationship and in January of 2019 Mother learned that Welch was dating someone else and they broke up. However, one week later they resumed their relationship and Welch informed Mother that to stay together, he wanted to have a child with Mother. Mother agreed and in February of 2019 she became pregnant with Welch’s child. Mother and her three daughters moved in with Welch in his Billings home. However, Mother was unhappy in Billings and after only two months she, Welch, and the children all moved back to her home in Joliet. The couple married in the spring of 2019.

¶4 At this time, J.P. was fourteen years old and had what Mother described as a good relationship with Welch in which J.P. enjoyed his company and looked up to him as a father figure. Mother stated that Welch and J.P. often spent time alone together while Mother was working. She also testified that Welch showed particular interest in J.P. and did not make the same effort to establish a relationship with her two younger daughters. J.P. testified that although she was initially distant with Welch, after they moved in together in Billings their relationship got better, and she began to spend more time alone with him. Their relationship eventually developed into what she described as a father-daughter relationship. However, after the family moved back to Joliet, Welch’s behavior towards J.P. began to change and make J.P. uncomfortable.

¶5 J.P. recounted that one time while she and Welch were babysitting her two sisters, they were in her room alone when Welch asked if she was a virgin. She responded that she was and then Welch asked if she wanted to know what it felt like. J.P. thought Welch was asking to have sexual intercourse and responded that she did not want to know what if felt like with him. After J.P. told Welch this, Welch crawled up to her as she was laying on her bed and reached his hand under the blanket towards her vagina. J.P. pushed his hand away and tucked the blanket under her leg. Mother returned home shortly and J.P. testified that Welch held a finger up to his lips and mouthed, "[d]on’t say anything."

¶6 J.P. also testified about another incident with Welch roughly one week after the encounter in her bedroom. During this incident she was standing in the kitchen when Welch said, "I need to talk to you" and motioned for her to come to his bedroom. J.P. testified that she told Welch he could speak to her in the kitchen. Welch then said that it would just take a second and began making gestures. J.P. reenacted these gestures for the jury which were described as her "holding a loose fist with her left hand and pointing with her index finger, inserting into the fist" suggesting sexual intercourse. J.P. stated that she eventually walked up to Welch’s room but remained in the doorway and saw that he was sittings on his bed. Welch told J.P. to come closer and once she did, J.P. stated that he told her "he wanted to go down on [her] and finger [her] and have sex with [her]" Welch also told J.P. that he wanted her to touch him, grabbed her hand, and pulled it towards his penis. J.P. said at this point she pulled her hand away from him.

¶7 At trial, J.P. told the jury how she turned and tried to leave Welch’s room but he grabbed her arm and pushed her up against the wall. She testified he held her face and put his leg on the side of her so she could not get out of the door. At this point, Welch began kissing J.P.’s neck as she was fighting to get away. J.P. managed to break free of Welch’s grip but as she turned to leave, he reached and grabbed in between her legs to restrain her. J.P. testified that Welch began rubbing his hands over her vagina as she yelled for him to stop. She managed to get out of the room and testified that afterwards they "sat down on the couch in silence, like that never happened." However, their relationship "was very different" from that moment on.

¶8 In the summer of 2019, Mother noticed a change in J.P.’s behavior and demeanor. Mother testified that J.P. no longer wanted to spend time with Welch and began isolating herself in her room. Around the same time, Mother and Welch’s relationship began to deteriorate, Welch stopped being intimate with Mother and started sleeping on the couch. Eventually Welch moved out in August of 2019.

¶9 Mother testified that shortly after Welch moved out, she and J.P. were driving alone when J.P. asked Mother if she intended to get back together with Welch. Mother responded that she was unsure because she loved Welch. However, Mother stated that she felt J.P. had something bad to tell her which led to a conversation during which J.P. disclosed Welch’s abuse. Mother located a police officer and reported what J.P. had told her. The officer then took both to the courthouse, to make a statement.

¶10 The State filed an Amended Information on May 25, 2021, charging Welch with attempted incest, incest, sexual abuse of children, and unlawful restraint. A jury trial was held from July 12-13, 2021. During voir dire, the State asked potential jurors numerous questions related to their familiarity with sexual abuse, the ways in which it can occur, and the believability of witnesses. The State asked prospective jurors to raise their hands if they or someone they knew had been a victim of sexual abuse. The State also asked potential jurors if they would "agree that a lot of this stuff, there is no -- it all happens in secret -- not all, but for the most part, it is a secretive thing; right?"

¶11 Apart from direct questions which the State posed during voir dire, some of the questions were asked as a result of specific responses the State received from potential jurors. For example, when one potential juror remarked that someone he knew had confided in him that she had been abused and he believed her because of her demeanor, the State followed up by asking, "[d]oes anyone have a problem with that, believing somebody based on their demeanor, not necessarily detail?" In another instance, after a prospective juror indicated that lack of eye contact does not necessarily mean an individual is lying and could instead just be nervousness, the State responded, "[t]hat makes sense. Does anybody agree with [this prospective juror]? Could everybody agree it’s kind of a whole package deal, it’s not just how they look, it’s not just what they’re saying, it’s kind of the whole perception of the story; would everybody agree with that?" Finally, the State announced to the prospective jurors that this case would strictly revolve around testimony and would not include any forensic evidence or DNA.

¶12 During closing statements, the State again emphasized the case revolves around testimony rather than physical evidence. In particular, the State focused on the importance of J.P.’s testimony, stating, "[s]he’s the only one that was there with him -- mom wasn’t there, she was at work -- she was the only one, and she sat there and told you what happened. It wasn’t easy for her, I’m sure, but she did it." During Welch’s closing, he indicated that J.P. lied during her testimony and suggested that her motive was to prevent Welch from getting back together with her mother. Welch provided several possible reasons for this, including that J.P. was angry at Welch for cheating on her mother, a traumatic past with prior men in her Mother’s life, and being angry about relocating twice in a month due to Welch and her Mother’s relationship.

¶13 The State responded that although Welch had repeatedly pushed J.P. in her testimony, her story remained the same and did not waver. In its final statements, the State closed by saying:

Ladies and gentlemen, the State -- better yet, [J.P.] proved this case to you beyond a reasonable doubt. If you believe that he tried to touch her vagina in the bed that night; guilty. If you believe that he touched her vagina that other night in the bedroom when she’s struggling, trying to get away from him; guilty. If you believed that he encouraged her to touch and masturbate his penis; guilty. If you believe that he restrained her and interfered with her liberty substantially; guilty. Thank you.

Welch never objected during any of the State’s closing arguments.

¶14 The jury returned a verdict of guilty on all four counts. Welch was sentenced to 50 years in the Montana State Prison with 25 years suspended, all sentences to run concurrently. He was ordered to complete Phases I & II of the Sexual Offender Program before being eligible for parole. Following recommendations in the Presentence Investigation...