                                                                                               05/05/2020


                                          DA 17-0571
                                                                                           Case Number: DA 17-0571

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 110N


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

KENNETH WAYNE JONES,

               Defendant and Appellant.

APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 16-0693
                       Honorable Rod Souza, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Helena, Montana

                For Appellee:

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

                       Scott D. Twito, Yellowstone County Attorney, Mary Leffers Barry, Deputy
                       County Attorney, Billings, Montana



                                                   Submitted on Briefs: February 5, 2020

                                                              Decided: May 5, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion, shall not be cited, and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Defendant Kenneth Wayne Jones appeals from the July 31, 2017 Judgment of the

Thirteenth Judicial District Court, Yellowstone County, following his convictions of incest

and witness tampering.       Jones argues that he received ineffective assistance of

counsel (IAC) when his counsel disclosed to the State that he intended to argue the victim’s

conduct did not comport with what would be expected of a victim of incest. We affirm.

¶3     On July 11, 2016, Jones was charged with one count of incest, a felony, in violation

of § 45-5-507, MCA, and one count of tampering with a witness, a felony, in violation of

§ 45-7-206, MCA. The charges were based on allegations that Jones repeatedly engaged

in sexual intercourse with his daughter, E.J., from the time she was fourteen-years-old until

she was sixteen-years-old, and that he threatened to harm E.J. if she disclosed the abuse.

¶4     On February 2, 2017, eleven days before trial was set to begin, the State gave notice

of its intent to call Wendy Dutton as an expert witness to “educate the jury on counter-

intuitive victim behaviors, including but not limited to recantation, cooperation with abuser

and delayed disclosure.” Counsel for the State acknowledged the disclosure was untimely,

but explained that she had met with Defense Counsel earlier that day and was informed

that Defense Counsel was likely to argue to the jury that E.J.’s conduct was uncharacteristic

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of a victim of incest, and that he would likely cross-examine E.J. about a recantation of an

earlier report of abuse.

¶5     On February 8, 2017, the District Court held a status conference and offered Jones

a continuance of trial as a potential remedy for the State’s late disclosure of Dutton. After

a recess in which Jones consulted with Defense Counsel, Jones confirmed his wishes to

proceed to trial as scheduled. The District Court also asked Defense Counsel if he believed

he was “making a good strategic decision with regard to [] Dutton, as far as interviewing

her and not relying or attempting to hire your own expert?” Defense Counsel responded

that he was “making a proper choice,” and was prepared to go to trial and cross-examine

Dutton. Dutton testified on the last day of trial.

¶6     Prior to Dutton’s testimony, the State called several other witnesses.

Dr. Cynthia Brewer testified that E.J. had presented to the Billings Clinic emergency room

in June 2016 with a severe case of Type 1 herpes, a sexually transmitted infection for which

Jones had also tested positive. E.J.’s sister, J.M.J., testified that Jones would often require

E.J. to share a bed with him when they lived in Roundup, Billings, and later when they

moved back to Arkansas. J.M.J. testified she observed Jones having intercourse with E.J.

while the three of them were staying in a motel room in Arkansas. On another occasion

while J.M.J. was staying in a camper with Jones and E.J., J.M.J. testified Jones and E.J.

shared a bed and J.M.J. awoke to the camper rocking back and forth. J.M.J. described that

she would sometimes hear “moaning” noises coming from Jones and the bed he was

sharing with E.J. and that she could hear E.J. say, “Stop.” J.M.J. also recalled hearing her

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father ask E.J., “Why are you tightening up?” E.J.’s mother, Laura, also testified that she

observed E.J. sharing a bed with Jones. The State introduced letters that Jones had mailed

to E.J. and the rest of the family in which he states he is disappointed in himself for his

actions and apologizes for making “somebody that means more . . . than anything” to him

“[a]fraid . . . or hate” him.

¶7     Jones argues on appeal that he received IAC when Defense Counsel revealed his

“confidential defense trial strategy” to the State in the days leading up to trial, causing the

State to secure an expert witness on child sexual abuse which prejudiced Jones at trial.

¶8     IAC claims are mixed questions of law and fact which we review de novo.

Cheetham v. State, 2019 MT 290, ¶ 7, 398 Mont. 131, 454 P.3d 673 (citing State v. Hatfield,

2018 MT 229, ¶ 18, 392 Mont. 509, 426 P.3d 569).

¶9     A criminal defendant has the federal and state constitutional right to the effective

assistance of counsel. Cheetham, ¶ 9 (citing U.S. Const. amend. VI, XIV; Mont. Const.

art. II, § 24). A defendant claiming IAC must show: (1) “that counsel’s performance was

deficient—making errors so serious that counsel was not functioning as ‘counsel’

guaranteed by the Sixth Amendment,” and (2) “that the deficient performance prejudiced

the defendant, in other words, that the errors ‘were so serious as to deprive the defendant

of a fair trial . . . .’” State v. Schowengerdt, 2018 MT 7, ¶ 31, 390 Mont. 123, 409 P.3d 38

(quoting Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861). A defendant

must satisfy both prongs of this test in order to prevail on an IAC claim. Whitlow, ¶ 11

(citing Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601).

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¶10    Even if we assume, for the sake of argument, that Jones’s trial counsel’s

performance was deficient, in light of the other overwhelming evidence presented against

Jones, we do not find a reasonable probability of a different outcome. See Heavygun v.

State, 2016 MT 66, ¶ 11, 383 Mont. 28, 368 P.3d 707 (quotations and original alterations

omitted) (“Under the second prong of the [IAC] test, the prejudice prong, the defendant

must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.”). The jury heard

testimony that E.J. had contracted the same sexually transmitted infection as Jones and that

she frequently shared a bed with Jones. J.M.J. testified that she saw and heard Jones having

intercourse with E.J. on at least two occasions. The jury also saw the letters Jones wrote

to E.J. and the rest of the family in which he admits he is disappointed in himself and

apologizes for his conduct.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The judgment of conviction is affirmed.

                                                 /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
/S/ BETH BAKER
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