                                                                                              March 1 2016


                                           DA 14-0255
                                                                                            Case Number: DA 14-0255

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 48



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHRISTOPHER MICHAEL AWBERY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Tenth Judicial District,
                        In and For the County of Fergus, Cause No. DC-2013-19
                        Honorable Jon A. Oldenburg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Thomas P. Meissner, Fergus County Attorney, Jean A. Adams, Deputy
                        County Attorney, Lewistown, Montana



                                                    Submitted on Briefs: December 16, 2015

                                                                Decided: March 1, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Christopher Michael Awbery appeals from his October 2013 conviction on six

felony charges in the Montana Tenth Judicial District Court. We affirm.

¶2    We restate the issues on appeal as follows:

      Issue One: Did the District Court properly exclude evidence that some of the
      victims suffered prior sexual abuse by others?

      Issue Two:      Is Awbery entitled to a new trial based upon prosecutorial
      misconduct?

      Issue Three: Is Awbery entitled to a new trial based upon the cumulative effect of
      the alleged errors?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    The State charged Awbery with two counts of incest against his daughter A.A.

when she was age 12 or younger; with sexual assault and sexual intercourse without

consent against A.A.’s half-sister J.G. when she was age 16 or younger; with sexual

intercourse without consent against I.A. when she was age 12 or younger; and with

sexual assault against N.H. when she was age 16 or younger. All of the charges and the

convictions were felonies.

¶4    Each of the victims testified at trial, describing how they were sexually abused by

Awbery. His daughter A.A. testified that she awoke with Awbery on top of her, and that

he dragged her by her hair to another room and raped her. She described other incidents

of rape; of Awbery penetrating her with a vibrator; and of Awbery touching her vaginal

area with his fingers in a “game” that he called “check the oil.” She testified that Awbery

threatened to hurt people close to her if she told anyone what he had done.

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¶5     A.A.’s half-sister J.G. testified that Awbery repeatedly touched her vaginal area

with his fingers and for a period of time raped her almost every day. Awbery similarly

threatened J.G. that if she told anyone what he had done he would kill her mother. A.A.’s

friend I.A. testified that Awbery also played “check the oil” with her; that he raped her on

more than one occasion; and that he used a vibrator on her vaginal area. N.H., another

friend of A.A., testified that Awbery touched her inappropriately on several occasions,

and that she observed Awbery take other girls into rooms after which she would hear a

scream and see the girl run out with her pants down.

¶6     The State presented the testimony of three expert witnesses. Dr. Wendy Dutton

did not testify about the victims, the assaults against the victims, or whether the assaults

had happened. Rather, she described the processes used by perpetrators of child abuse

and the typical behaviors exhibited by girls who have been abused. Clinical counselor

Michelle Feller testified about counseling she provided to A.A., J.G., and N.H. She had

been a counselor for A.A. and J.G. since before the assaults by Awbery. She first

diagnosed them with Post Traumatic Stress Disorder in March 2013, after the assaults by

Awbery, and testified that they did not have the symptoms necessary to make a PTSD

diagnosis prior to that time. Feller testified that N.H. had less severe symptoms, and

diagnosed her with acute stress disorder.        Feller described the general symptoms

exhibited by victims of child sexual abuse and that she had seen those symptoms in A.A.,

J.G. and N.H. The State also presented the testimony of Morgan Mitchell, a therapist

who provided counseling to I.A. She also described symptoms typically exhibited by

child sexual abuse victims, and testified that she had observed them in I.A.

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¶7     The District Court instructed the jury that the testimony of the experts “cannot be

used to show that a crime here was committed or that the defendant committed it; nor can

it be considered as an opinion by them that the alleged victims are telling the truth.”

¶8     Awbery testified in his own defense, denying that he committed any of the acts

described by the victims. The jury convicted him on all counts.

¶9     In March 2014 the District Court sentenced Awbery to terms in prison.

                               STANDARD OF REVIEW
¶10    We review a district court’s rulings on the admission of evidence to determine

whether there was an abuse of discretion. Beehler v. Eastern Radiological Assoc., 2012

MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131. We review a district court’s application of a

statute to determine whether it was correct. Beehler, ¶ 17.

                                      DISCUSSION

¶11    Issue One: Did the District Court properly exclude evidence that some of the
       victims suffered prior sexual abuse by others?

¶12    Prior to trial the State moved that the defense be precluded from introducing

evidence that A.A., J.G. and N.H. had each been sexually assaulted by others prior to

Awbery’s offenses.     The State relied upon the exclusions of the Rape Shield Law,

§ 45-5-511, MCA. The apparent perpetrator against A.A. and J.G. was a man named

Thompson who was convicted of sexual offenses as a result. The alleged perpetrator

against N.H. was a man named Gallagher. That incident was not fully investigated

because of the wishes of the victims’ parents, and no charges were ever filed.




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¶13    The defense argued that Awbery’s constitutional right to present a defense was

implicated and that it overcame the exclusions of the Rape Shield Law. According to the

defense, the prior assaults increased the chance that the victims suffered PTSD as a result,

and increased the chance that the allegations against Awbery were erroneous because the

victims suffered from PTSD. Further, the defense stated that it did not intend to ask the

girls themselves about the incidents, but predicted that the testimony of “perhaps family

members, counselors, or Ms. Dutton might make [the prior incidents] relevant.”

¶14    After hearing argument of counsel, the District Court refused to exclude the prior

assault evidence outright, but warned that if it were admitted it would have to be “very,

very relevant” and limited.     The District Court stated that the prior “incidents are

generally covered by the rape shield law and not admissible unless testimony or an

exception makes it so.”     (Emphasis added.)     The defense subsequently argued that

Dutton’s general background testimony established that PTSD could be a cause for

subsequent erroneous allegations of sexual assault and that the PTSD diagnosed in some

of Awbery’s victims could come from the prior assaults.

¶15    The District Court ultimately excluded the defense from presenting evidence of

the prior assaults against three of the victims because it would cause undue prejudice and

would confuse and distract the jury. The District Court further noted that the record

reflected that Feller’s PTSD diagnosis was specific to the time of Awbery’s offenses and

that she testified that the PTSD did not exist as a diagnosable condition before Awbery’s

offenses. In addition, the District Court noted that there was no evidence that there was



                                             5
any similarity between the prior incidents and Awbery’s offenses and that the jury could

be confused and distracted by hearing about other incidents.

¶16    The Montana Rape Shield Law provides:

       Evidence concerning the sexual conduct of the victim is inadmissible in
       prosecutions under this part except evidence of the victim’s past sexual
       conduct with the offender or evidence of specific instances of the victim’s
       sexual activity to show the origin of semen, pregnancy or disease that is at
       issue in the prosecution.

Section 45-5-511(2), MCA.

¶17    In 1975, Montana joined most other states by adopting a rape shield law. See Ch.

129, L. 1975. Under the Rape Shield Law, “evidence concerning the sexual conduct of

the victim” is inadmissible in a criminal prosecution, with very limited exceptions not at

issue here. Section 45-5-511(2), MCA. Montana’s Rape Shield Law is designed to

prevent the trial of the charge against the defendant from becoming a trial of the victim’s

prior sexual conduct. State v. Higley, 190 Mont. 412, 422, 621 P.2d 1043, 1050-51

(1980).   Rape shield laws generally protect victims from being exposed at trial to

harassing or irrelevant questions concerning their past sexual behavior. Michigan v.

Lucas, 500 U.S. 145, 146, 111 S. Ct. 1743, 1745 (1991); State v. Anderson, 211 Mont.

272, 283, 686 P.2d 193, 199 (1984). They evolved from society’s recognition that a rape

victim’s prior sexual history is irrelevant to issues of consent or the victim’s propensity

for truthfulness.   Tanya Bagne Marcketti, Rape Shield Laws:         Do They Shield the

Children?, 78 Iowa L. Rev. 751, 754-55 (1993). The statute reflects a compelling state

interest in keeping a rape trial from becoming a trial of the victim. Anderson, 211 Mont.

at 283, 686 P.2d at 199.

                                            6
¶18    Although rape shield legislation originally focused on adult rape victims, most

jurisdictions also include child victims of sexual abuse within the protections of their rape

shield statutes. In 1985 the Montana Legislature broadened the applicability of the Rape

Shield Law to include cases involving all types of sexual abuse. See Sec, 3, Ch. 172,

L. 1985. The policies underlying the application of rape shield statutes to adult victims

apply to child victims as well: rape shield statutes eliminate the need for victims to

defend incidents in their past and minimize the trauma of testifying. Marcketti at 756.

¶19    Conflict can arise between rape shield statutes and a defendant’s Sixth

Amendment rights to confront his accuser and to present evidence at trial in defense of

the charge against him. A defendant charged with a crime has a right, arising from the

Sixth Amendment to the United States Constitution and Article II, Section 24 of the

Montana Constitution, to confront his accusers. State v. MacKinnon, 1998 MT 78, ¶ 33,

288 Mont. 329, 957 P.2d 23. A defendant has a similarly-based right to present evidence

in his defense. State v. Johnson, 1998 MT 107, ¶ 22, 288 Mont. 513, 958 P.2d 1182.

¶20    Neither the Rape Shield Law nor the defendant’s right to confront and to present

evidence are absolute. MacKinnon, ¶ 33; Johnson, ¶¶ 22-23. The Rape Shield Law

cannot be applied to exclude evidence arbitrarily or mechanistically, Johnson, ¶ 21, State

v. Colburn, 2016 MT 41, ¶ 25, 382 Mont. 223, ___ P.3d ___, and it is the trial court’s

responsibility to strike a balance between the defendant’s right to present a defense and a

victim’s rights under the statute. State v. Lindberg, 2008 MT 839, ¶ 53, 347 Mont. 76,

196 P.3d 1252. A court balancing the interests of the defendant with those protected by

the Rape Shield Law should require that the defendant’s proffered evidence is not merely

                                             7
speculative or unsupported. Johnson, ¶ 24; Lindberg, ¶ 56. The court should consider

whether the evidence is relevant and probative (Rules 401 and 402, M. R. Evid.); whether

the evidence is merely cumulative of other admissible evidence; and whether the

probative value of the evidence is outweighed by its prejudicial effect (Rule 403,

M. R. Evid.); Commonwealth v. Fernsler, 715 A.2d 435, 440 (Pa. Sup. Ct. 1998). The

purpose of these considerations is to ensure a fair trial for the defendant while upholding

the compelling interest of the Rape Shield Law in preserving the integrity of the trial and

keeping it from becoming a trial of the victim. Anderson, 211 Mont. at 283, 686 P.2d at

199.

¶21    We conclude that the District Court properly applied the Rape Shield Law and

properly precluded the defense from presenting evidence and argument concerning the

prior incidents involving three of Awbery’s victims.        The District Court ruled that

Awbery had not established a sufficient foundation to admit the evidence, and recognized

that Awbery could not make a showing that the evidence was admissible as an exception

to the Rape Shield Law, properly balancing the interests involved. It is clear that the

defense theory—that three of his victims suffered prior abuse which left them suffering

from PTSD which caused them to make erroneous reports against Awbery—never

progressed past conjecture and speculation. There was no evidence that any of the

victims suffered from PTSD prior to Awbery’s assaults, and no evidence that any

condition the victims suffered resulted in their making false accusations. The testimony

of the State’s experts did not support the defense theories, and it specifically defused the

theory of infliction of PTSD prior to Awbery’s offenses.

                                             8
¶22    Further, there was no clear evidence of the prior acts, either the facts of the abuse

or the effects of it upon the victims. While Thompson was convicted of offenses, the

defense presented no evidence or offer of proof about the nature of those offenses or

whether there was any similarity to the acts allegedly perpetrated by Awbery. Further, in

the case of the allegations involving Gallagher, there was no evidence that the prior acts

even occurred. The defense disclaimed any intent to ask the girls themselves about the

prior incidents, and it was never made clear how or to what extent the defense intended to

present evidence of the nature and extent of the prior incidents. This clearly, as the

District Court recognized, presented a considerable risk of turning the trial into a second

case involving incidents unrelated to Awbery’s offenses. We agree with the District

Court that there would have been a high risk of jury confusion.

¶23    This Court recently considered similar issues in Colburn, in which the defendant

was convicted of sexual intercourse without consent, sexual assault, and incest. The

victims were the defendant’s own daughter and a second girl, who were both age 11 at

the time of the offenses. Defendant’s daughter testified at trial and generally denied that

her father abused her. However, a nurse practitioner who had experience interviewing

assault victims interviewed the daughter and testified to statements that the daughter

made about the defendant’s abusive conduct.         The State also played a tape of that

interview for the jury. The tape was the “major direct evidence to support the incest

charges.” Colburn, ¶ 12. The second girl also testified, and described Colburn’s abuse in

detail. The State’s expert also interviewed the second girl and testified that in her opinion



                                             9
the second girl would not have exhibited her detailed sexual knowledge unless she had

actually experienced abuse.

¶24    Colburn’s defense was based upon showing that the nurse who interviewed his

daughter used leading and suggestive questions, and that proper interviewing technique

could have yielded different results. The defense proposed to call an expert to critique

the interview techniques used to obtain the statements from defendant’s daughter. The

defense further contended that the second victim may have fabricated her allegations

against the defendant. In particular, the defense sought to introduce evidence that a

month after making her allegations against the defendant, the second girl disclosed to

another forensic interviewer that she had been sexually abused by her own father. The

defense sought to introduce evidence that the second girl stated that she made the

allegations against Colburn to “test the waters,” to determine whether adults would

believe her allegations. When adults accepted her allegations against the defendant, she

felt comfortable with making the accusations against her own father.

¶25    The District Court in Colburn excluded the defense expert’s testimony on forensic

interviewing techniques, and, based upon the Rape Shield Law, prohibited any evidence

that the second victim had suffered prior abuse from her own father.           This Court

determined that the district court in that case wrongly excluded the defense expert on

interviewing techniques, and that it applied the Rape Shield Law without considering and

balancing the defendant’s right to present a defense with the interests of the victims. The

defense laid a proper foundation for its proposed evidence and its theories were not based



                                            10
upon mere speculation. Therefore, we reversed the conviction in Colburn and remanded

for a new trial.

¶26    In this case, by contrast, the District Court carefully considered Awbery’s right to

present a defense to the charges; weighed it against the interests protected by the Rape

Shield Law; and ruled that Awbery might be allowed to present evidence of prior abuse if

it were made relevant by trial testimony. While there was expert prosecution testimony

in Colburn that tied one victim’s sexual knowledge to her having been abused, there was

not that same kind of testimony in Awbery’s case. Further, there was no evidence to tie

prior abuse of Awbery’s victim to the development of PTSD as a reason for mistaken

testimony. The two cases are factually distinct.

¶27    The District Court properly precluded Awbery from raising issues regarding prior

offenses against three of the four victims.

¶28    Issue Two:      Is Awbery entitled to a new trial based upon prosecutorial
       misconduct?

¶29    Awbery contends that remarks by the County Attorney in closing argument were

prejudicial, improper and denied him a fair trial. He contends that the County Attorney

urged the jury to consider the charges together, rather than to consider each charge

separately; that the County Attorney improperly described the victims as “courageous”

girls who should be supported; and that the County Attorney personally vouched for the

credibility of witnesses. The defense did not object to any part of the closing argument,

and requests that this Court undertake plain error review.




                                              11
¶30    This Court generally does not consider allegations of prosecutorial misconduct in

closing argument unless there was a contemporaneous objection at trial. However, those

allegations can be reviewed under the plain error doctrine. State v. Hayden, 2008 MT

274, ¶¶ 29-30, 345 Mont. 252, 190 P.3d 1091. Plain error review is discretionary and

occurs only when the situation implicates the defendant’s fundamental constitutional

rights, and when failing to review may result in a manifest miscarriage of justice, may

leave unsettled the question of the fundamental fairness of the trial, or may compromise

the integrity of the judicial process. State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491,

310 P.3d 506. We do not presume prejudice to the defendant from alleged improper

argument, and the defendant must show that the argument violated his substantial rights.

Aker, ¶ 24.

¶31    Upon reviewing Awbery’s arguments on this issue, we decline to undertake plain

error review of the alleged errors.    The prosecutor may comment on conflicts and

contradictions in testimony and upon the evidence, and may suggest inferences that the

jury can draw from the evidence. The prosecutor may comment on the gravity of the

crime, the volume of the evidence, the credibility of the witness and the instructions

given by the court. Aker, ¶¶ 26-27. Awbery has not demonstrated that the prosecutor’s

statements during closing rose to a level that trigger the threshold for undertaking plain

error review.




                                           12
¶32    Issue Three: Is Awbery entitled to a new trial based upon the cumulative effect of
       the alleged errors?

¶33    Based upon our disposition of the first two issues, we decline to consider

Awbery’s contention that he is entitled to a new trial based upon cumulative error.

                                       CONCLUSION

¶34    After careful consideration of the arguments and authorities of the parties, we

affirm the convictions.

¶35    Affirmed.


                                                  /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE


Justice Patricia Cotter, concurring.

¶36    I concur in the decision of the Court upholding the defendant’s convictions. I

write separately to set forth the basis for my concurrence.

¶37    As the Court observes, we recently issued an opinion in State v. Colburn, in which

we reversed the defendant’s conviction on two grounds. We concluded the District Court

abused its discretion in disqualifying Colburn’s expert witness from testifying at trial, and

erred in its application of the Rape Shield law to exclude evidence that Colburn offered at


                                             13
trial. Colburn, ¶¶ 18, 29. The evidence that Colburn sought to introduce at trial centered

upon the fact that the victim, R.W., had been abused by her father who had been

convicted of assault, and thus the source of her detailed knowledge concerning sexual

activity (a centerpiece of the case against Colburn) came not from Colburn but from the

abuse her father inflicted. Colburn, ¶ 20.

¶38    Similarly, in this case, the defendant alleged that victims A.A. and J.G. were

victims of prior assaults by an individual who was convicted of assault. As the Court

notes, the defendant attempted throughout the trial to present evidence that the prior

assaults increased the chance that the allegations against Awbery were based upon the

victims’ PTSD, and/or that the PTSD diagnosed in some of the victims actually resulted

from their prior assaults. Although Colburn and this case share the important unrefuted

fact that the respective victims had been previously assaulted, I would conclude for the

reasons set forth below that Colburn does not control here, and that the District Court did

not abuse its discretion in excluding evidence of the previous assaults from the jury’s

consideration.

¶39    In Colburn, the State introduced the testimony of nurse practitioner Hansen, who

interviewed R.W. and testified that her statements were consistent with those of a child

who had experienced sexual abuse. She stated a child would not have the detailed sexual

knowledge R.W. possessed unless the child had been sexually abused. Colburn, ¶ 11.

The State relied upon Hansen’s testimony to argue that R.W.’s sexual knowledge must

have resulted from Colburn’s abuse. Colburn countered that the fact that R.W. had been

assaulted by her father would establish that her sexual knowledge was gained from those

                                             14
assaults rather than from any assault by him. Thus, there was an immediate relevant

straight-line connection between the lynchpin of the State’s case against Colburn (R.W.’s

sexual knowledge) and the fact that R.W. had been previously assaulted by her father.

¶40    Connecting the dots in this case is far less certain and far more complicated.

Awbery sought to offer an alternative explanation for the victims’ psychological

symptoms, alleging that their PTSD and anxiety could have been the result of sexual

abuse by others and could also have caused them to fabricate allegations against him.

There are evidentiary impediments to establishing this defense. First, it is not clear from

the record how Awbery intended to introduce into evidence the prior incidents involving

the victims so as to illuminate the cause of their psychological conditions, as he

represented to the court that he did not intend to ask the victims any such questions. He

said he would instead introduce the evidence “perhaps [through] family members,

counselors, or Ms. Dutton.”     He later advised the court during trial that he could

introduce evidence of these other incidents through another named witness, counselor

Feller, and/or a police officer. However, he never identified the witness through whom

the evidence would be introduced, nor did he make an offer of proof in this regard. M. R.

Evid. 103(2).

¶41    Second, even if Awbery had been allowed to introduce evidence of the prior

assaults, the task remained for him to elicit testimony tying the victims’ PTSD and other

psychological conditions to the prior assaults, and/or establishing that their PTSD led

them to fabricate the evidence against him. The defendant called no expert witness to

render these conclusions, and the prospect of gaining such admissions on

                                            15
cross-examination of the state’s expert and the children’s therapists was dubious. As the

State pointed out during argument in chambers, it was not the prior instances of alleged

abuse that were speculative or unsupported; rather, it was the claimed defenses of

fabrication and erroneous reporting (as well as the defense that the victims’ PTSD and

other psychological conditions could have resulted from prior abuse) that were

speculative and unsupported.

¶42    In denying Awbery’s request to introduce into evidence allegations of prior abuse,

the District Court concluded that the proposed evidence would confuse and distract the

jury and get the court into “time consuming sideshows.” The court reasoned that “we

could go on weeks on weeks trying to determine what the PTSD in these children[,] given

their lifestyle and given the things that have happened to them in the past, is.” The court

further observed that the testimony of counselor Feller was specific to the symptoms she

has observed in these victims and very specific to this defendant.

¶43    Regardless of whether a case involves the Rape Shield law or another statutory or

common law evidentiary rule, it is axiomatic that the District Court has broad discretion

to exclude potentially relevant evidence where its probative value is substantially

outweighed by the danger of confusion of the issues, the misleading of the jury, or by

considerations of waste of time. M. R. Evid. 403; State v. Passmore, 2010 MT 34, ¶ 64,

355 Mont. 187, 225 P.3d 1229. Given the protracted and confusing lengths to which the

defendant would have to go to connect the prior assaults to the victims’ various

psychological conditions and the lack of any clear path to get there, I conclude that the



                                            16
court did not abuse its discretion in excluding the subject evidence. I would therefore

affirm.

                                               /S/ PATRICIA COTTER



Justices Beth Baker and Laurie McKinnon join the concurrence.


                                               /S/ BETH BAKER
                                               /S/ LAURIE McKINNON




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