                                                                                       February 17 2015


                                          DA 13-0202
                                                                                       Case Number: DA 13-0202




                     IN THE SUPREME COURT OF THE STATE OF MONTANA


                                         2015 MT 46N




STATE OF MONTANA,


         Plaintiff and Appellee,


    v.


PATRICK JAMES MARTINEAU,


         Defendant and Appellant.




APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and For the County of Missoula, Cause No. DC 11-531
                    Honorable Edward P. McLean, Presiding Judge




COUNSEL OF RECORD:


            For Appellant:


                    Wade Zolynski, Chief Appellate Defender; Jacob Q. Johnson, Assistant
                Appellate Defender; Helena, Montana


         For Appellee:


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


                Kirsten H. Pabst, Missoula County Attorney; Suzy Boylan, Deputy
                County Attorney; Missoula, Montana




                                             Submitted on Briefs: January 14, 2015
                                                       Decided: February 17, 2015




Filed:


                __________________________________________
                                     Clerk




                                     2
Justice Jim Rice delivered the Opinion of the Court.


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

Operating Rules, this case is decided by memorandum opinion and 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     Martineau appeals from the judgment entered by the Fourth Judicial District

Court, Missoula County, adjudging him guilty of incest. He challenges the denial of his

motion to introduce evidence of a subsequent sexual abuse suffered by the victim of his

crime as an explanation for her sexualized behavior. We affirm.


¶3     Martineau gained custody of his daughter, C.A.B., who lived with him for about a

year before being removed from his care by Child and Family Services. Following

C.A.B.’s removal, Martineau cooperated with CFS and again regained custody of C.A.B.

only to have her again removed from his care. C.A.B. was placed in foster care with a

family who had previously adopted her younger sister and Martineau subsequently

relinquished his parental rights. While placed with her foster family, C.A.B. began to

exhibit troubling sexualized behavior. When prompted, C.A.B. told her foster mother

that her father had taught her the behavior.



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¶4    C.A.B. was placed at the Intermountain Children’s Home in Helena, Montana, for

treatment, where she disclosed to a social worker that her father had sexually abused

her. C.A.B. was subsequently interviewed by a family nurse practitioner with First Step

Resource Center, once more discussing the sexual abuse. On November 21, 2011,

Martineau was charged with one count of Incest under § 45-5-507, MCA, in which it was

alleged that Martineau had sexually assaulted C.A.B. during the years she was between

three and eight years of age. After a two-day jury trial, Martineau was found guilty and

sentenced to 50 years in prison, with 20 years suspended.


¶5    Three days prior to trial, Martineau filed a Request for Hearing regarding possible

exculpatory evidence that had recently been discovered. Specifically, it had been

learned that C.A.B. had been sexually assaulted by a foster brother after being removed

from Martineau’s care. Martineau argued the evidence should be admitted to show a

possible alternative cause of C.A.B.’s sexualized behavior. The District Court denied the

motion, citing § 45-5-511(2), MCA, the Rape Shield Statute, which provides that

evidence concerning a victim’s sexual conduct is inadmissible in prosecutions unless it

involves the victim’s past sexual conduct with the offender or is offered to show the

origin of semen, pregnancy, or disease at issue in the prosecution.


¶6    We review a district court’s evidentiary rulings under the Rape Shield Statute for

manifest abuse of discretion. State v. Stuit, 268 Mont. 176, 183, 885 P.2d 1290, 1295

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(1994). A district court abuses its discretion if it acts arbitrarily without the employment

of conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice. State v. Stock, 2011 MT 131, ¶ 17, 361 Mont. 1, 256 P.3d 889. Martineau

argues that the District Court, in denying his motion, failed to balance the Rape Shield

Statute with his constitutional right to defend. He argues that exclusion of the evidence

prevented him from offering a complete defense and, because the State focused on

C.A.B.’s sexualized behavior during trial as possibly consistent with past sexual abuse,

the jury was forced to conclude that the only explanation for the behavior was a sexual

assault perpetrated by Martineau. Martineau did not object to the manner in which the

State used evidence of C.A.B.’s sexualized behavior, but maintains he should have been

able to counter that evidence with evidence of the subsequent sexual assault.


¶7     The State argues we should decline to address this argument, as Martineau failed

to raise the issue at trial, where he instead asserted that the evidence was admissible as

“reverse 404(b) evidence.” The State further offers that exclusionary rules such as the

Rape Shield Statute do not abridge a defendant’s right to present a defense so long as

the rules “are not arbitrary or disproportionate to their purpose,” citing State v.

Patterson, 2012 MT 282, ¶ 19, 367 Mont. 186, 291 P.3d 556. Finally, the State argues

that Martineau misstates the role C.A.B.’s sexualized behavior played in the




                                          4
prosecution, as it was used only as a limited part of an overall narrative, culminating in

C.A.B.’s disclosures of the sexual abuse.


¶8     In denying Martineau’s motion, the District Court concluded the evidence of the

subsequent sexual assault was inadmissible as failing to satisfy either of the exceptions

provided in § 45-5-511(2), MCA. Additionally, the lower court cited three of our

previous decisions in which analogous evidence was found to be properly excluded

under the Rape Shield Statute.1


¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions.

The issue in this case is one of judicial discretion and there clearly was not a manifest

abuse of discretion.




                                                   /S/ JIM RICE


We concur:


/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON


1
 State v. Kao, 245 Mont. 263, 800 P.2d 714 (1990); Stuit, 268 Mont. 176, 885 P.2d 1290; State
v. Rhyne, 253 Mont. 513, 833 P.2d 1112 (1992).
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/S/ BETH BAKER
/S/ PATRICIA COTTER




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