                                                                                             August 9 2012


                                          DA 11-0477

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 166



KINGSLEY ARIEGWE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. DDV-08-1227(a)
                       Honorable Thomas M. McKittrick, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade M. Zolynski, Chief Appellate Defender, Garrett R. Norcott,
                       Assistant Appellate Defender, Helena, Montana

                For Appellee:

                       Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       John Parker, Cascade County Attorney, Great Falls, Montana



                                                   Submitted on Briefs: May 30, 2012

                                                              Decided: August 9, 2012


Filed:

                       __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Kingsley Ariegwe (Ariegwe) appeals from the Findings of Fact, Conclusions of

Law, and Order (Order) entered by the Eighth Judicial District Court of Cascade County,

Montana, denying his petition for postconviction relief (PCR).

¶2     We affirm.

                                         ISSUES

¶3     The dispositive issue on appeal is:

¶4     Did the District Court err when it denied Ariegwe’s claim of ineffective assistance

of counsel?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     On January 15, 2003, Ariegwe, age 35, virtually met a 15-year-old female, K.M.,

in an Internet chat room. After chatting online and looking at her online profile, which

included K.M.’s picture and age, Ariegwe gave K.M. his phone number. K.M. called

Ariegwe, and on January 17, 2003, the two of them met in person and an alleged sexual

encounter occurred. Shortly after the incident K.M. called her friend R.K. to tell her

about it, stating that she had had sex with a 32-year-old man. Unknown to either of the

girls, the phone conversation was inadvertently recorded on an answering machine at

R.K.’s house. The tape of the conversation was preserved and is at issue in this appeal.

¶6     Ariegwe was charged with sexual intercourse without consent, a felony in

violation of § 45-5-503, MCA (2001), attempted sexual intercourse without consent, a

felony in violation of §§ 45-4-103 and 45-5-503, MCA (2001), and unlawful transactions

with children, a misdemeanor in violation of § 45-5-623(1)(c), MCA (2001). A jury trial


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was held in early March 2004, at which Dr. Janet Merrill (Dr. Merrill), a licensed

psychologist who had examined K.M., testified on behalf of the State without objection

from Ariegwe’s counsel.

¶7     During his opening statement, Ariegwe’s counsel told the jury about the taped

conversation between the girls and implied that the jury would get to listen to the

recording of it during trial.   However, defense counsel never offered the tape into

evidence. He later noted the omission in his closing statement.

¶8     On March 4, 2004, Ariegwe was convicted of attempted sexual intercourse

without consent and unlawful transactions with a minor, and acquitted of sexual

intercourse without consent. State v. Ariegwe, 2007 MT 204, ¶ 13, 338 Mont. 442, 167

P.3d 815. Ariegwe appealed the conviction and sentence, and this Court affirmed the

conviction and reversed and remanded the restitution portion of the sentence. Ariegwe,

¶¶ 1, 182.

¶9     Through counsel, Ariegwe petitioned for PCR, raising several arguments. Those

presented for appeal are whether Ariegwe received ineffective assistance of counsel

(IAC) when his trial counsel failed to object to the testimony of Dr. Merrill and failed to

introduce into evidence the recorded conversation between K.M. and R.K.

¶10    An evidentiary hearing on Ariegwe’s PCR petition was held on March 17, 2011.

At the hearing, both parties were represented by counsel and presented evidence,

including the testimony of Ariegwe’s trial counsel. After the hearing, the court requested

submission of the recorded phone conversation and listened to it. On June 29, 2011, the

District Court issued the Order denying Ariegwe’s petition for PCR.             The court


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determined that Ariegwe was not prejudiced by his counsel’s failure to object to Dr.

Merrill’s expert testimony or failure to introduce the recorded conversation into evidence.

¶11    Ariegwe appeals.

                              STANDARD OF REVIEW

¶12    “[This Court] review[s] a district court’s denial of a petition for postconviction

relief to determine whether the district court’s findings of fact are clearly erroneous and

whether its conclusions of law are correct.” Miller v. State, 2012 MT 131, ¶ 9, 365 Mont.

264, ___ P.3d ___ (quoting Hammer v. State, 2008 MT 342, ¶ 9, 346 Mont. 279, 194

P.3d 699). “A petitioner for post-conviction relief must prove by a preponderance of

evidence that he or she is entitled to relief.” Miller, ¶ 14 (quoting Rogers v. State, 2011

MT 105, ¶ 15, 360 Mont. 334, 253 P.3d 889).

¶13    “Ineffective assistance of counsel claims are mixed questions of law and fact

[which this Court reviews] de novo.” Miller, ¶ 9 (citing Whitlow v. State, 2008 MT 140,

¶ 9, 343 Mont. 90, 183 P.3d 861).

                                     DISCUSSION

¶14    Issue: Did the District Court err when it denied Ariegwe’s claim of ineffective
       assistance of counsel?

¶15    Under the Sixth and Fourteenth Amendments to the United States Constitution and

under Article II, Section 24 of the Montana Constitution, the right to counsel in criminal

prosecutions is guaranteed. Miller, ¶ 12. “The right to counsel on appeal includes the

right to effective assistance of counsel.” Miller, ¶ 12 (citations omitted). Claims of

ineffective assistance of counsel are reviewed using the two-part test described in



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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), where “the defendant

must demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s

deficient performance prejudiced the defendant.” Miller, ¶ 13 (quoting St. Germain v.

State, 2012 MT 86, ¶ 8, 364 Mont. 494, 276 P.3d 886).

¶16    In assessing whether counsel’s performance was deficient under the first prong,

we “determine whether counsel’s representation fell below an objective standard of

reasonableness considering prevailing professional norms and all the circumstances.”

Miller, ¶ 13 (quoting St. Germain, ¶ 10). “Under the second prong, ‘the defendant must

show that, but for counsel’s errors, a reasonable probability exists that the result of the

proceeding would have been different.         A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the proceedings.’ ” Miller, ¶ 13

(quoting St. Germain, ¶ 11) (internal citation omitted). In order to prevail, the defendant

must satisfy both prongs of the Strickland test. Miller, ¶ 13.

¶17    Ariegwe denied there was sexual contact between him and K.M., while K.M.

firmly maintained that there was forcible sexual contact, including penetration. Ariegwe

asserts that the physical evidence was not conclusive and therefore the case came down to

the credibility of the witnesses. Thus, he argues on appeal that his trial counsel was

ineffective in failing to object to Dr. Merrill’s testimony regarding the credibility of K.M.

and failing to introduce into evidence the recorded conversation between K.M. and R.K.

The State counters that Ariegwe failed to demonstrate that his counsel was deficient or

that he was prejudiced by his counsel’s performance. We review each claim in turn.

¶18    A. Expert Testimony


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¶19     Dr. Merrill testified without objection from Ariegwe’s attorney that K.M. suffered

from post-traumatic stress disorder and depression, and that her diagnosis was consistent

with that of a teenager who had been sexually abused. Ariegwe contends that Dr.

Merrill’s testimony was inadmissible because it inappropriately bolstered K.M.’s

credibility by “plac[ing] an aura of scientific authority” over K.M.’s allegations, when the

credibility of the alleged victim should have been exclusively within the province of the

jury.

¶20     We have held that expert testimony concerning the credibility of an alleged victim

is generally improper because it invades the province of the jury. State v. Harris, 247

Mont. 405, 409-10, 808 P.2d 453, 455 (1991). An exception exists in certain cases

involving the sexual abuse of a minor child. Harris, 247 Mont. at 410, 808 P.2d at 455.

However, we held in State v. Hensley, 250 Mont. 478, 482, 821 P.2d 1029, 1031-32

(1991), that where an alleged victim was sixteen years of age and competent to testify, it

was error to admit expert testimony regarding the credibility of the alleged victim. Here,

K.M. was sixteen years old and competent when she testified.

¶21     Ariegwe argues that his counsel should have objected to Dr. Merrill’s testimony

under Hensley, and that his failure to do so establishes that he did not know or understand

the law. He contends that Dr. Merrill’s testimony should not have been admitted due to

the danger of unfair prejudice, and that it bolstered K.M.’s credibility while not providing

the jury with any new information. The State argues that Dr. Merrill’s testimony did not

directly comment on K.M.’s credibility, was not offered to bolster K.M.’s credibility, and




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that no reasonable probability exists that the outcome would have been different had Dr.

Merrill not testified.

¶22    Assuming for the sake of argument that Dr. Merrill’s testimony concerning the

credibility of K.M.’s story was erroneously admitted under Hensley, this does not end the

IAC inquiry. Ariegwe’s burden of proof under the Strickland test is two-fold. First,

Ariegwe must show that his counsel’s performance was deficient. Second, he must show

that he was prejudiced by his counsel’s deficient performance, in that a reasonable

probability exists that the result of the proceeding would have been different had his

counsel objected to Dr. Merrill’s testimony. Miller, ¶ 13. In making this determination,

the totality of the evidence before the judge or jury must be considered, as required by

Strickland. State v. Wing, 2008 MT 218, ¶ 43, 344 Mont. 243, 188 P.3d 999.

¶23    Ariegwe vigorously argues that his lawyer’s performance was deficient, but he

does not address the second prong—whether he was prejudiced due to a reasonable

probability that the result would have been different had his counsel objected to Dr.

Merrill’s testimony. If either prong of the Strickland test is not met, then the IAC inquiry

can end. State v. Gunderson, 2010 MT 166, ¶ 68, 357 Mont. 142, 237 P.3d 74. We

conclude Ariegwe has failed to satisfy the prejudice prong because we cannot conclude

that, but for the failure of Ariegwe’s counsel to object to Dr. Merrill’s testimony, the

result of Ariegwe’s trial would have been different. See Wing, ¶ 44.

¶24    The case against Ariegwe was supported by substantial evidence in addition to

K.M.’s testimony, including fibers found on K.M.’s underwear from a unique blanket

owned by Ariegwe and the presence of amylase on the inside of K.M.’s underwear. This


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evidence is notable because Ariegwe insisted that K.M.’s pants were never removed

during their encounter. In addition, photographic evidence buttressed K.M.’s version of

events, as did the testimony of R.K. and K.M.’s father. Moreover, the jury was still

obligated to assess the credibility of K.M., and it had the discretion to accept or reject Dr.

Merrill’s testimony in its entirety. See State v. Geyman, 224 Mont. 194, 200-01, 729 P.2d

475, 479-80 (1986). In sum, Ariegwe has not demonstrated that without Dr. Merrill’s

testimony, there is a reasonable probability that the result would have been different.

This being so, we decline to further address the deficiency prong of the Strickland test or

the propriety of Dr. Merrill’s testimony.

¶25    We conclude that the District Court did not err in concluding that Ariegwe was not

prejudiced by his counsel’s failure to object to Dr. Merrill’s testimony.

¶26    B. Recorded Conversation

¶27    As noted above, counsel for Ariegwe told the jury in his opening statement that it

would hear the tape-recorded conversation between K.M. and her friend R.K. However,

he forgot to introduce the tape into evidence, and ended up discussing the omission

during his closing argument. He later testified at the PCR hearing that the tape had been

important to his case strategy, as he had wanted to use K.M.’s voice inflections on the

tape to attack her credibility.

¶28    Ariegwe argues on appeal that the District Court erred in denying his claim for

IAC for counsel’s failure to introduce the recorded conversation into evidence. He

maintains that K.M.’s inflection on the tape as she described the alleged sexual encounter

to R. K. was enthusiastic and boastful. Ariegwe posits she made up the story to enhance


                                            8
her stature, and that when the answering machine tape was discovered, she became

locked into her false story. Ariegwe claims that it was important that the jury hear the

recorded conversation, as it would have assisted it in assessing K.M.’s credibility.

¶29    After listening to the recorded conversation during the PCR proceedings, the

District Court determined that Ariegwe was not prejudiced by the failure to introduce the

recording into evidence, given its content and poor audio quality. The State examined

both K.M. and R.K. about the phone conversation, and Ariegwe’s counsel had the full

opportunity to cross-examine both of them. In addition, the court concluded that the

recorded conversation was potentially inculpatory rather than exculpatory because in it

K.M. stated that she had had sex with a man and that it was not supposed to happen. If

anything, these nearly contemporaneous statements underscored K.M.’s testimony that

the sexual encounter had actually occurred. The court noted that had the recorded

conversation been introduced to the jury, Ariegwe may well have been convicted of

sexual intercourse without consent, rather than being acquitted of the charge. The court

therefore found that counsel’s error in not introducing the recorded conversation into

evidence did not undermine confidence in the outcome of the trial.

¶30    We agree with the District Court. Ariegwe has not demonstrated that but for his

counsel’s failure to introduce the tape as intended, a reasonable probability existed that

the result of the proceeding would have been different—or more favorable—to him.

                                     CONCLUSION

¶31    For the foregoing reasons, we conclude that the District Court did not err when it

denied Ariegwe’s claim of IAC. The District Court’s findings of fact are not clearly


                                          9
erroneous and its conclusions of law are correct. We therefore affirm the denial and

dismissal of Ariegwe’s petition for PCR.


                                             /S/ PATRICIA COTTER


We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER




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