                                                                                           October 29 2013


                                           DA 12-0577

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 318



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

LLOYD EUGENE MEDEROS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Silver Bow, Cause No. DC 11-83
                        Honorable Brad Newman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Joseph P. Howard, P.C., Attorney at Law; Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General; Helena, Montana

                        Eileen Joyce, Silver Bow County Attorney, Samm Cox, Deputy County
                        Attorney; Butte, Montana


                                                    Submitted on Briefs: August 14, 2013
                                                               Decided: October 29, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Lloyd Eugene Mederos (Mederos) appeals his conviction from the Second Judicial

District Court, Silver Bow County. We affirm.

¶2     We address the following issue on appeal:

¶3     Whether Mederos’s trial counsel rendered ineffective assistance of counsel.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶4     A.R. and A.S. were both seven years old at the time that they alleged Mederos

sexually assaulted them. A.S. lived with her mother Laura. A.R. lived with her mother,

Laura’s sister, Kelley. Mederos was married to Kelley, so he also lived with A.R. A.S. and

A.R. were close friends and spent lots of time together.

¶5     In 2011, A.S. told Laura that she did not want to go to her Aunt Kelley’s apartment

because Mederos had been “sexing” her. A.S. also told Laura that Mederos had engaged in

sexual contact with A.R. Laura contacted Kelley and the girls’ grandfather, Larry. Laura,

Kelley, and Larry confronted Mederos. Mederos denied the claims. Laura reported Mederos

to the police.

¶6     Forensic investigators interviewed the girls. The girls provided vague and unclear

accounts during the forensic interviews. Medical examinations showed some signs of

trauma, but ultimately proved inconclusive.

¶7     Mederos denied the charges at trial. The two girls testified at trial. Both girls offered

disjointed and, at times, contradictory testimony about what happened. A.R. and A.S. often



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responded that they did not remember what happened when counsel for the State or

Mederos’s counsel asked them for more details.

¶8     Laura, Kelley, and Larry all testified at trial about the events of the night that A.S.

told Laura that Mederos had been “sexing” her. The State also presented the testimony of

other witnesses. These other witnesses included clinical social worker Dawn English

(English), pediatrician Dr. Kenneth Graham (Graham), and forensic interviewers Shawna

Guay (Guay) and Sue Casey (Casey). English testified about her therapy sessions with A.R.

and A.S. She commented that A.S. had made consistent statements during therapy. Graham

discussed his medical examination of the girls and what he had reported in his forensic

medical reports. Both Guay and Casey testified about their forensic interviews with the girls.

¶9     A jury convicted Mederos of both counts of sexual assault. The District Court

sentenced Mederos to concurrent 100 year sentences at Montana State Prison, with 50 years

of each sentence suspended. Mederos appeals.

                               STANDARD OF REVIEW

¶10    Claims of ineffective assistance of counsel present mixed issues of law and fact that

we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88.

                                       DISCUSSION

¶11    Mederos argues that his trial counsel rendered ineffective assistance of counsel in two

areas. Mederos first contends that his counsel failed to object to numerous incidences of

hearsay testimony by various witnesses. He also argues that his counsel improperly

stipulated to the admission of multiple items of evidence that contained otherwise
                                              3
inadmissible hearsay statements. Mederos contends that this evidence bolstered A.R.’s and

A.S.’s testimony and raises a reasonable probability that the outcome of the proceedings

would have been different if this additional, cumulative evidence had not been admitted.

¶12    We evaluate claims of ineffective assistance of counsel under the two-prong test set

forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). State v.

Howard, 2011 MT 246, ¶ 20, 362 Mont. 196, 265 P.3d 606. A defendant must establish that:

(1) counsel’s performance was deficient and (2) the deficient performance prejudiced the

defendant. Rosling v. State, 2012 MT 179, ¶ 23, 366 Mont. 50, 285 P.3d 486. A defendant

must establish both prongs of the test. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90,

183 P.3d 861. We will not address both prongs if a defendant fails to establish either prong.

Whitlow, ¶ 11.

¶13    A deficient performance falls “below an objective standard of reasonableness

measured under prevailing professional norms and in light of the surrounding

circumstances.” Whitlow, ¶ 20. We have recognized “ ‘a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.’ ” Whitlow, ¶ 15,

quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. A petitioner who argues that his

counsel’s “failure to object rendered counsel ineffective must show that counsel’s trial

objection would have been proper and that the court likely would have sustained the

objection.” Rogers v. State, 2011 MT 105, ¶ 16, 360 Mont. 334, 253 P.3d 889.

¶14    Mederos argues first that his counsel failed to object to multiple and repeated

instances of hearsay testimony. Mederos posits that Laura, Kelley, and Larry offered
                                             4
impermissible hearsay testimony regarding earlier statements made by A.R. and A.S.

Mederos also argues that Graham, English, Guay, and Casey improperly testified to the girls’

out-of-court statements and identifications of Mederos as the perpetrator. The State argues

that Mederos’s trial counsel used testimony from these witnesses to cast doubt on the girls’

credibility.

¶15    Not all out-of-court statements constitute hearsay. Montana Rule of Evidence

801(d)(1) specifically excludes from the hearsay rule a prior statement by a witness where

“the declarant testifies at the trial or hearing and is subject to cross-examination concerning

the statement” under two separate circumstances relevant here. The first circumstance

involves a statement that is “inconsistent with the declarant’s testimony.” M. R. Evid.

801(d)(1)(A). The second circumstance involves a statement that is “consistent with the

declarant’s testimony and is offered to rebut an express or implied charge against the

declarant of subsequent fabrication, improper influence or motive.”             M. R. Evid.

801(d)(1)(B).

¶16    Mederos must show that hearsay objections would have been proper and that the trial

court would have sustained the objection to support his claims of ineffective assistance.

Rogers, ¶ 16. A.R. and A.S. both testified at trial and Mederos’s counsel cross-examined

each regarding their earlier statements. Many of A.R.’s and A.S.’s prior statements likely

would qualify as prior inconsistent statements.

¶17    A claimed lapse of memory represents an inconsistency under M. R. Evid.

801(d)(1)(A). Howard, ¶ 31, citing State v. Lawrence, 285 Mont. 140, 159, 948 P.2d 186,
                                              5
198 (1997). A.R. and A.S. frequently responded that they did not know or could not

remember answers to questions during direct and cross-examination. The girls’ testimony

charitably can be described as vague at times and somewhat unclear. The repeated lapses in

memory in the girls’ testimony allowed the State to introduce other witnesses to testify about

the girls’ prior inconsistent statements. See Howard, ¶ 31, citing Lawrence, 285 Mont. at

159, 948 P.2d at 198.

¶18    Laura’s, Kelley’s, and Larry’s testimony introduced the girls’ prior inconsistent

statements. A court may admit consistent statements in conjunction with inconsistent

statements where the nature of a witness’s testimony makes it difficult for the court to

separate the consistent from the inconsistent portions of the prior statement. Howard, ¶ 31,

citing Lawrence, 285 Mont. at 160, 948 P.2d at 198. The witnesses admittedly mixed

consistent statements with inconsistent ones. The record indicates that to parse the consistent

statements from the inconsistent statements likely would have made the witnesses’ testimony

disjointed and confusing. See Howard, ¶ 31, citing Lawrence, 285 Mont. at 160, 948 P.2d at

198.

¶19    For example, A.S. testified that she had talked to her mother about Mederos on

February 28, 2011. Mederos’s counsel asked A.S. on cross-examination when she first had

told her mother that Mederos had been molesting her. A.S. responded that she did not

remember. A.S.’s disjointed testimony failed to provide a clear picture of what actually

happened on February 28, 2011. Laura testified about events that happened the night that

A.S. told Laura that Mederos had been “sexing” her. Laura’s testimony clarified what she
                                              6
and A.S. had discussed on February 28, 2011, and what A.S. had told her about Mederos.

For the District Court to have admitted only parts of Laura’s testimony would have led to a

piecemeal picture of what had happened that likely would have further confused the jury.

Laura’s testimony provided a time frame and context for A.S.’s testimony about what

happened when she told her mother about Mederos.

¶20     Mederos’s counsel may have had strategic reasons for not objecting even if all of

Laura’s, Kelley’s, and Larry’s testimony did not fall under M. R. Evid. 801(d)(1)(A). We

have held that counsel’s use of objections “lies within his or her discretion.” Riggs v. State,

2011 MT 239, ¶ 53, 362 Mont. 140, 264 P.3d 693. Riggs also involved a sexual assault case

against minors. Riggs raised an ineffective assistance of counsel claim based on his

counsel’s failure to object when several witnesses—the victims’ mothers, social workers,

and law enforcement officers—offered prior consistent statements made by the victims.

Riggs, ¶ 50.

¶21     Riggs’s counsel testified at an evidentiary hearing on Riggs’s petition for post-

conviction relief that he had not objected to these witnesses’ statements because he wanted to

point out the numerous inconsistencies in the victims’ statements. Riggs, ¶ 53. We

recognized that different counsel have different trial strategies and that Riggs’s counsel’s

strategy was objectively reasonable. Riggs, ¶ 54. As in Riggs, Mederos’s counsel may have

opted not to object to Laura’s, Kelley’s, and Larry’s testimony in order to highlight

inconsistencies in the girls’ stories. Mederos’s counsel had discretion not to object. Riggs,

¶ 53.
                                              7
¶22    Mederos next asserts that Graham, the examining pediatrician, improperly testified to

A.R.’s out-of-court statements recorded by the forensic interview team. Mederos classifies

this testimony by Graham as hearsay within hearsay. Mederos ignores the fact that the

parties previously had stipulated to the admission of A.R.’s forensic interview. Graham

simply testified to matters previously admitted into evidence through the forensic interviews

and forensic medical reports that he had prepared.

¶23    Mederos also argues that Graham offered impermissible hearsay that A.S. “had

disclosed digital/vaginal penetration.” The parties previously had stipulated to the admission

of A.S’s forensic medical report created by Graham.          Graham’s testimony repeated

statements that he had made in A.S.’s forensic medical report, including the notion that A.S.

“had disclosed digital/vaginal penetration.”

¶24    Presentation to a jury of admissible evidence that proves the same facts as tainted

evidence usually amounts to harmless error when the tainted evidence qualifies as

cumulative of the admissible evidence. State v. Van Kirk, 2001 MT 184, ¶ 47, 306 Mont.

215, 32 P.3d 735. We have characterized as cumulative a witness’s testimony regarding out-

of-court statements, and, thus, harmless error, as the statements mirrored those made on a

911 tape that the trial court earlier had admitted without objection. State v. Mizenko, 2006

MT 11, ¶ 26, 330 Mont. 299, 127 P.3d 458.

¶25    Graham’s testimony repeated statements made in A.R.’s forensic interview and A.S.’s

forensic medical report. Both documents earlier had been admitted without objection.

Graham’s testimony would qualify as cumulative of the previously admitted documents.
                                               8
Van Kirk, ¶ 47. The District Court’s admission of Graham’s statements, regardless whether

Mederos’s counsel objected, would be subject to harmless error analysis. Van Kirk, ¶ 47.

“An ineffective assistance of counsel claim cannot succeed when predicated on counsel’s

failure to take an action which, under the circumstances, would likely not have changed the

outcome of the proceeding.” State v. Haldane, 2013 MT 32, ¶ 37, 368 Mont. 396, 300 P.3d

657.

¶26    Mederos contends that social worker English repeated hearsay statements in her

testimony when the State asked English whether A.S. had been consistent about her

allegations and the identity of her abuser. English testified that A.S. had been “completely

consistent.” English’s testimony regarding A.S.’s prior consistent statement likely would not

qualify as hearsay under M. R. Evid. 801(c). English did not restate A.S.’s prior statements

in court to prove the “truth of the matter asserted” in the statements. M. R. Evid. 801(c).

Rather, English testified in response to Mederos’s attacks on A.S.’s veracity as a witness.

See State v. Robins, 2013 MT 71, ¶ 11, 369 Mont. 291, 297 P.3d 1213 (discussing situations

in which it would be appropriate for an expert witness to testify about a child sexual abuse

victim’s credibility). English contended that A.S. consistently had alleged that Mederos had

engaged in sexual conduct with her. Mederos’s counsel legitimately could have believed

that he did not have grounds to object to the statement as hearsay. See State v. Aker, 2013

MT 253, ¶ 36, 371 Mont. 491, ___P.3d ___.

¶27    Mederos also argues that forensic interviewers Guay and Casey presented hearsay

statements. Guay and Casey testified regarding statements made by A.R. and A.S. during
                                             9
forensic interviews. The parties previously had stipulated to the admission of the forensic

interviews. The statements would qualify as cumulative of the previously admitted forensic

interviews. Mizenko, ¶ 26; Van Kirk, ¶ 47. Cumulative evidence will be deemed harmless “

‘unless the record shows that the error was prejudicial.’ ” State v. Hansen, 1999 MT 253,

¶ 86, 296 Mont. 282, 989 P.2d 338, quoting State v. Carter, 285 Mont. 449, 459, 948 P.2d

1173, 1178-79 (1997); § 46-20-701(1), MCA. Unfairly prejudicial evidence “arouses the

jury’s hostility or sympathy for one side without regard to its probative value.” State v.

Ugalde, 2013 MT 308, ¶ 47, 372 Mont. 234, ___ P.3d ___.

¶28    Mederos’s counsel could exercise discretion regarding when to object. Riggs, ¶ 53.

He may have chosen not to object for a variety of reasons, even when a witness proffered

hearsay testimony. Testimony from Laura, Larry, Kelley, Graham, Guay, and Casey

contradicted the girls’ vague and erratic testimony throughout trial. Mederos’s counsel

successfully brought out these contradictions through cross-examination. Mederos’s counsel

may have anticipated that these witnesses’ testimony would create a tangled story that

ultimately would undermine the girls’ credibility.

¶29    Mederos next challenges the District Court’s admission of various items of evidence

in the record that he argues should have been excluded as hearsay. A statement can be oral

or written for purposes of hearsay. M. R. Evid. 801(a). Mederos’s counsel stipulated to the

admission of all the State’s exhibits before trial. This stipulation included four main items:

(1) video recordings of the girls’ forensic interviews, (2) drawings and pictures created



                                             10
during the girls’ forensic interviews, (3) reports from the girls’ forensic medical exams, and

(4) A.S.’s emergency room medical report.

¶30    The girls frequently mentioned that they could not remember certain events

throughout their testimony.       As discussed previously, lapsed memories constitute

inconsistent statements under M. R. Evid. 801(d)(1)(A). Howard, ¶ 31, citing Lawrence, 285

Mont. at 159, 948 P.2d at 198. The girls also made statements at trial directly inconsistent

with statements they had offered during the forensic interviews. For example, A.S. told

Casey during her forensic interview that Mederos had twice put his finger in her “pee-pee.”

A.S. testified in trial, though, that Mederos put his finger in her “pee-pee” three times and

that she “remember[ed] telling everyone that…he put his finger in [her] pee-pee three times.”



¶31    Mederos’s counsel cross-examined A.R. and A.S. and the other witnesses presented

by the State regarding these inconsistent statements. Mederos’s counsel highlighted the fact

that A.S. testified differently at trial than she had testified during the forensic interviews.

These inconsistencies may have prompted Mederos’s counsel to stipulate to the admission of

the forensic reports for strategic reasons to help undermine the girls’ testimony through

cross-examination. Counsel’s actions, taken in this light, do not appear to fall “below an

objective standard of reasonableness measured under prevailing professional norms.”

Whitlow, ¶ 20.

¶32    The State introduced pictures and drawings from the girls’ forensic interviews. A.R.

labeled body parts on a picture of the human body during her forensic interview. The State
                                              11
used the picture to establish how A.R. identified different body parts. The State did not use

the picture with A.R’s annotations to establish that the picture presented a true and accurate

representation of the human body. The State instead introduced the picture to demonstrate

to, and clarify for, the jury the names that A.R. used for different body parts.

¶33    A.S. drew a picture during her forensic interview. A.S.’s drawing depicted events that

A.S. claimed had happened in the bedroom with Mederos. A.S. denied at trial having made

the drawing. The admission of the drawing, coupled with A.S.’s denial of having made the

drawing, undermined A.S.’s credibility as a witness. The decision by Mederos’s counsel to

stipulate to admission of the drawing had the potential to help Mederos’s case as evidenced

by A.S.’s denial that she had made the drawing.

¶34    Graham created separate forensic medical reports for A.S. and A.R. Both medical

reports contain fertile ground for cross-examination. A.S.’s medical report illuminates

inconsistencies in her claims. A.S. states in the report that Mederos had touched her in

January. A.S.’s mother testified at trial, however, that A.S. had not been to Mederos’s house

in January. A.R.’s medical report indicates that she previously had been to the Child

Evaluation Center based on allegations of possible sexual abuse by a different family

member. Both reports provide inconclusive physical evidence of sexual abuse.

¶35    The State also introduced a medical report from A.S.’s emergency room visit after

Laura had reported the case to the police. A.S. reported the presence of “white stuff” in her

vaginal area after Mederos had molested her. One might deduce that the “white stuff” had

been semen. The emergency room medical report offers another possible explanation,
                                             12
however, for “white stuff” found in A.S.’s vaginal area. The report speculates that A.S.

might have had a yeast infection. Mederos’s counsel reasonably could have anticipated that

the admission of these medical reports would benefit his client. This interpretation would

position Mederos’s counsel’s actions within the standard of reasonable professional

assistance. See Whitlow, ¶ 14, citing Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2065.

¶36    We ask “why” Mederos’s counsel did or did not perform as alleged in evaluating

Mederos’s counsel’s performance throughout trial. Aker, ¶ 34, citing Howard, ¶ 21. We

look to the record to answer this question. Aker, ¶ 34, citing Howard, ¶ 21. We cannot

address a claim of ineffective assistance of counsel on direct appeal if the defendant bases his

claim on matters outside of the record. Aker, ¶ 34, citing State v. Kougl, 2004 MT 243, ¶ 14,

323 Mont. 6, 97 P.3d 1095. A petition for post-conviction relief would allow Mederos to

develop a record to explain “why” his counsel acted as he did at trial. Aker, ¶ 34. A

reviewing court then could determine “ ‘whether counsel’s performance was ineffective or

merely a tactical decision.’ ” Aker, ¶ 34, quoting Kougl, ¶ 14.

¶37    The evidence as a whole illuminates inconsistencies in the girls’ story and undermines

their veracity as witnesses. Mederos’s counsel addressed these inconsistencies in his closing

statements. Mederos’s counsel also may have perceived that all of the statements and

evidence contested by Mederos did not actually violate hearsay rules. The trial record does

not include an explanation for Mederos’s counsel’s trial strategy. We decline to speculate on

the claimed error on direct appeal as Mederos’s allegations of ineffective counsel implicate

questions of trial strategy that exceed the scope of the record. See Aker, ¶ 37, citing State v.
                                              13
Dyfort, 2000 MT 338, ¶ 11, 303 Mont. 153, 15 P.3d 464. A petition for post-conviction

relief represents the appropriate route for Mederos to develop a record to support his claim of

ineffective assistance of counsel. Aker, ¶ 34.

¶38    Affirmed.


                                                   /S/ BRIAN MORRIS


We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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