                                                                                            July 31 2012


                                          DA 11-0373

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 163



LARRY BOMAR,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Ninth Judicial District,
                      In and For the County of Glacier, Cause No. DV 10-63
                      Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant
                      Appellate Defender; John Wright, Legal Intern; Helena, Montana

               For Appellee:

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

                      Carolyn Berkram, Glacier County Attorney; Cut Bank, Montana



                                                  Submitted on Briefs: May 30, 2012

                                                             Decided: July 31, 2012


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.



¶1     Larry Bomar (Bomar) appeals from the order of the Ninth Judicial District Court,

Glacier County, dismissing his petition for postconviction relief, which alleged

ineffective assistance of his trial counsel. We affirm and address the following issue:

¶2     Did the District Court err by dismissing Bomar’s postconviction petition?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     In 2005, Bomar was charged with attempted sexual intercourse without consent

and sexual assault, both felonies, upon K.J. The crimes were alleged to have occurred in

2000, when K.J. was six years old. K.J. was twelve years old at the time the trial was

conducted in November, 2005. Bomar was represented by Daniel Donovan and Jeremy

Yellin. The jury convicted Bomar of sexual assault and acquitted him of attempted

sexual intercourse without consent. He was sentenced to twenty-seven years at the

Montana State Prison with twelve years suspended.

¶4     Bomar appealed the conviction, and this Court affirmed. State v. Bomar, 2008

MT 91, 342 Mont. 281, 182 P.3d 47. We rejected Bomar’s argument that there was

insufficient evidence to support his conviction and declined to reach his arguments

concerning the testimony of the State’s expert witness, Rochelle Beley (Beley), on

grounds that his arguments were waived for failing to timely raise them in the District

Court. Bomar, ¶¶ 27, 33-41. Bomar thereafter filed a pro se petition for postconviction

relief and was appointed counsel by the District Court to represent him in the proceeding.

                                         2
Bomar’s counsel filed a supplemental brief in support of the petition, arguing that

Bomar’s trial counsel had rendered ineffective assistance by, inter alia, failing to present

exculpatory medical evidence and failing to present adequate expert testimony to

challenge the qualifications and testimony of Beley. The District Court conducted an

evidentiary hearing and thereafter dismissed the petition. Bomar appeals. Additional

facts will be discussed herein.

                                  STANDARD OF REVIEW

¶5     In postconviction relief proceedings, we review a district court’s findings of fact to

determine if they are clearly erroneous. We review its conclusions of law to determine if

they are correct. Rogers v. State, 2011 MT 105, ¶ 12, 360 Mont. 334, 253 P.3d 889.

“Ineffective assistance of counsel claims present mixed questions of law and fact that the

Court reviews de novo.” Rogers, ¶ 12. A petitioner seeking to reverse a district court’s

order denying postconviction relief based on ineffective assistance of counsel has a heavy

burden. State v. Morgan, 2003 MT 193, ¶ 9, 316 Mont. 509, 74 P.3d 1047.

                                      DISCUSSION

¶6     Did the District Court err by dismissing Bomar’s postconviction petition?

¶7     When evaluating a claim of ineffective assistance of counsel, we use the two-part

test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984);

Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. Under the first prong

of the Strickland test, “the defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Whitlow, ¶ 14 (quoting Strickland, 466 U.S. at

                                          3
687-88, 104 S. Ct. at 2064). “‘There is a strong presumption with regard to the first

prong of the Strickland test that trial counsel’s performance was based on sound trial

strategy and falls within the broad range of reasonable professional conduct.’” Whitlow,

¶ 21 (citations omitted). “In order to eliminate the distorting effects of hindsight, we

have explained that judicial scrutiny of counsel’s performance must be highly

deferential.” Worthan v. State, 2010 MT 98, ¶ 10, 356 Mont. 206, 232 P.3d 380 (citing

Whitlow, ¶ 15). The burden of establishing the first prong “requires showing that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Whitlow, ¶ 10 (citing Strickland, 466 U.S. at 687,

104 S. Ct. at 2064).

¶8     Under the second prong, the defendant must show that counsel’s performance

prejudiced the defense. Whitlow, ¶ 10 (citing State v. Racz, 2007 MT 244, ¶ 22, 339

Mont. 218, 168 P.3d 685).      “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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The

defendant must prove both prongs in order to succeed on his ineffective assistance of

counsel claim; therefore, if a defendant makes an insufficient showing regarding one

prong of the test, there is no need to address the other prong. Whitlow, ¶ 11 (citing

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




                                        4
¶9     Bomar argues his trial attorneys were ineffective by failing to adequately

challenge Beley’s expert testimony and by failing to offer exculpatory medical evidence

that was referenced during the defense’s opening statement.

       A. Failure to rebut testimony of the State’s expert.

¶10    The incident giving rise to the charges was alleged to have occurred in Montana in

July of 2000, when K.J. was six years old. The record indicates that K.J., who resides in

Oregon, did not speak about the incident until December of 2001. After she told her

mother what had happened, an Oregon police detective interviewed K.J. at her school.

The detective did not record the conversation with K.J., but he took notes during the

interview. A medical examination was performed upon K.J. at a child advocacy center

that revealed no signs of vaginal trauma or physical injury. She was also interviewed by

medical personnel at the advocacy center. Bomar was thereafter charged. 1

¶11    Prior to trial, Bomar’s attorneys filed several motions in limine, “four of which

pertained to K.J.’s out-of-court statements, Beley’s anticipated expert testimony or both.”

Bomar, ¶ 30. Beley, a therapist with a Master’s Degree in Marriage and Family Therapy,

was expected to testify concerning the credibility of K.J.’s statements to the Oregon

detective and to the medical personnel at the child advocacy center, based upon a

Statement Validity Assessment (SVA) 2 completed by Beley. Bomar’s counsel requested


1
 Bomar was originally charged with sexual assault and sexual intercourse without consent, but
after the State learned there was no evidence of penetration, it amended the sexual intercourse
without consent charge to attempted sexual intercourse without consent.
2
 A Statement Validity Assessment is a methodology used to determine whether allegations of
sexual abuse by children are more consistent with a true account or a false account of abuse,
                                          5
a hearing on their motions in limine. The District Court indicated that it did not have

time for a hearing and that it assumed that the motions could be decided on the briefs.

Counsel agreed that the District Court could decide the motions on the briefs. See

Bomar, ¶ 32.      The District Court granted Bomar’s motion to preclude Beley from

testifying about the ultimate issue of whether K.J. was truthful and reserved ruling on

other issues concerning Beley’s anticipated testimony until trial.

¶12    The court held an in-chambers hearing during the trial to address Beley’s

anticipated trial testimony. Beley testified she had received training on conducting SVAs

and that she was familiar with the vast body of research on SVAs. She testified that an

in-person interview or recording of the child’s interview was preferable but was not

necessary if the interviewer had written down how the questions were asked and the

responses of the child.

¶13    Defense counsel hired two experts, Dr. Donna Zook and Dr. Michael Scolotti, who

ultimately expressed strong disagreement with Beley’s opinion that an in-person

interview with the child or some sort of verbatim documentation of the interview was not

necessary.   Neither Zook nor Scolotti testified at the in-chambers hearing, although

Bomar’s counsel extensively cross-examined Beley about her testimony, focusing on

Beley’s failure to personally interview the child. Counsel then argued to the court that




based on the 1991 study, “Assessment of Children’s Statements of Sexual Abuse,” by David C.
Raskin and Phillip W. Esplin, published in The Suggestibility of Children’s Recollections 153-64
(John Doris ed., Am. Psychol. Assn. 1991). The validity of the methodology used in the
Assessment is not at issue here.
                                            6
Beley did not have adequate credentials to qualify as an expert and that her flawed

methodology required exclusion of her testimony.

¶14    The District Court denied the defense’s motions, ruling that Beley had satisfied the

Scheffelman3 requirements and could testify at trial. The District Court permitted Beley

to testify from her assessment about the factors that indicated truthfulness in K.J.’s

statements to the detective and medical personnel, but it excluded any testimony about

whether K.J. was in fact truthful or not truthful. Beley thus testified to the jury that

“many of [K.J.]’s statements were consistent with the research, which shows valid

statements of sexual abuse.” Defense counsel cross-examined Beley about her failure to

personally interview K.J. and the absence of a recording of the interview. Counsel

elicited from Beley the concession that the accuracy of her assessment depended upon

K.J.’s statements being accurately reported by the detective and the medical personnel.

¶15    After the State rested, defense counsel moved to strike Beley’s testimony and for

an instruction that the jury was to disregard the testimony or, alternatively, for a mistrial.

The court denied the motion. The defense then called Dr. Zook, who testified that

Beley’s SVA was flawed. When asked which procedures necessary for a valid SVA

Beley had failed to follow, Dr. Zook responded “[t]he most significant is that she did not

interview the child face-to-face.”
3
  State v. Scheffelman, 250 Mont. 334, 820 P.2d 1293 (1991), permits an expert to testify, under
certain conditions, about the credibility of an alleged victim of child sexual abuse who testifies at
trial. The trial court must determine that the witness has “(1) extensive first hand experience
with sexually abused and non-sexually abused children; (2) thorough and up to date knowledge
of the professional literature on child sexual abuse; and (3) objectivity and neutrality about
individual cases as are required of other experts.” Scheffelman, 250 Mont. at 342, 820 P.2d at
1298.
                                              7
¶16    After Bomar was convicted of sexual assault, he moved for a new trial supported

by an affidavit from Dr. Scolotti expressing Scolotti’s disagreement with Beley’s

methodology and opining that her SVA was invalid because of the failure to have, at

least, a verbatim transcript of the interviews. The District Court denied the motion.

¶17    Bomar argues that “[w]hile defense counsel had evidence showing that [Beley]

fundamentally misunderstood the research-based Statement Validity Assessment for

analyzing the credibility of children’s statements . . . they failed to present the evidence to

the district court in a timely manner.”        Bomar argues his defense attorneys were

ineffective in failing to call Dr. Zook during the in-chambers hearing to demonstrate that

Beley did not have sufficient knowledge of SVAs or the requisite evidence for

completion of a valid SVA of K.J.’s statements. Bomar contends that, had this been

done, Beley would not have been allowed to testify as an expert witness under Mont. R.

Evid. 702 or the second prong of the Scheffelman test, which requires “thorough and up

to date knowledge of the professional literature on child sexual abuse.” Scheffelman, 250

Mont. at 342, 820 P.2d at 1298. Instead, Beley was “allowed to tell the jury that the

child’s testimony was confirmed by the rigors of the scientific method.” Had Dr. Zook

testified about Beley’s flawed understanding during the in-chambers hearing or had

defense counsel insisted on a pretrial hearing instead of ceding to the court’s request to

rule based on the briefing, Bomar posits that the outcome of the trial would likely have

been different. Noting our ruling in Bomar, Bomar argues that his defense counsel




                                           8
“deficiently waived the pretrial Daubert4 hearing on Ms. Beley’s flawed testimony.” The

State responds that “Bomar’s defense counsel made an aggressive effort to prevent the

State from being able to present Beley’s testimony” and that they “provided active and

capable representation and were not ineffective.”

¶18      The record reveals that Bomar’s defense counsel were sharply focused on Beley’s

testimony and fully engaged in an effort to exclude or undermine it. Prior to trial,

counsel filed several motions in limine for the specific purpose of precluding or limiting

Beley’s anticipated testimony.        They hired Dr. Zook to evaluate K.J.’s statements,

analyze Beley’s work, and provide rebuttal testimony should Beley be permitted to

testify. They strongly cross-examined Beley at the in-chambers hearing. During trial,

counsel made vigorous objections to Beley’s qualification as an expert and challenged

her opinion as being improperly based upon the notes of the detective and the medical

personnel and lacking an in-person interview of K.J. After Beley testified, counsel again

objected to her testimony, moved to strike her testimony, moved to instruct the jury to

disregard it, and moved alternatively for a mistrial. When the District Court denied their

motions, they called Dr. Zook to rebut Beley’s testimony and to demonstrate Beley’s

flawed approach to the SVA. Bomar’s counsel’s efforts to disqualify Beley’s testimony

were such that, upon their request for a mistrial, the prosecutor commented, “Your

Honor, I believe that point has been belabored.” In closing arguments, Bomar’s counsel




4
    Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786 (1993).
                                            9
again emphasized the flaws in Beley’s testimony. After trial, they moved for a new trial

based upon Dr. Scolotti’s assessment.

¶19    Mr. Donovan’s and Mr. Yellin’s efforts were exhaustive and commendable. If

they can also be described as imperfect, that is not the standard by which effective

representation is assessed. “‘The Sixth Amendment guarantees reasonable competence,

not perfect advocacy judged with the benefit of hindsight.’” Whitlow, ¶ 32 (quoting

Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003) (per curiam)). “It is ‘all too

tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence.’

. . . . The question is whether an attorney’s representation amounted to incompetence

under ‘prevailing professional norms,’ not whether it deviated from best practices or most

common custom.” Harrington v. Richter, 562 U.S.___, 131 S. Ct. 770, 788 (2011)

(citing Strickland, 466 U.S. at 689, 690, 104 S. Ct. at 2052). “Success is not the test of

efficient counsel.” Riggs v. State, 2011 MT 239, ¶ 32, 362 Mont. 140, 264 P.3d 693

(citing State v. Martz, 233 Mont. 136, 140, 760 P.2d 65, 68 (1988)). Bomar’s counsels’

efforts clearly fell within “the wide range of reasonable professional assistance,”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, and it certainly cannot be said that they

“made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Whitlow, ¶ 10 (citing Strickland, 466 U.S. at 687,

104 S. Ct. at 2064). Bomar’s claim does not satisfy the first prong of the Strickland test

and thus has not established ineffective assistance of counsel.

       B. Failure to introduce medical evidence.

                                         10
¶20    During his opening statement, Mr. Donovan told the jury that “[t]he evidence will

show that there’s no medical evidence of that, there’s no sign of an injury in her private

area, no scarring, no DNA, nothing whatsoever.” When K.J. was examined at the child

advocacy center a year and a half after the alleged assault, the medical professionals

found no signs of trauma or physical evidence of injury. However, neither the defense

nor the State introduced any medical evidence.

¶21    Bomar thus contends that his counsel was ineffective for promising evidence to

the jury that was never produced. He argues that “[t]he one piece of evidence that could

impeach K.J.’s core claim of penetration, the first piece of evidence promised by defense

counsel during opening statement, the piece of evidence that would cast a shadow over

the state’s entire case, was never introduced,” and “counsel could have no reason to then

expressly promise the jury evidence that he did not intend to present.”

¶22    The State argues defense counsel was not ineffective because their decision not to

introduce the medical evidence, or the lack thereof, was sound trial strategy. Both

defense counsel testified at the postconviction hearing that they made a strategic decision

during the trial not to introduce the medical evidence. They reasoned it would have

opened the door for the State to offer expert testimony to the effect that the absence of

trauma a year and a half after the assault did not demonstrate that penetration had not

occurred. Additionally, counsel testified that because the charge of sexual intercourse

without consent had been amended to attempted sexual intercourse without consent,

penetration was no longer an issue that needed to be litigated. The State also notes that,

                                        11
though no medical evidence was introduced, Mr. Yellin’s closing argument nonetheless

“focused on the fact that there was not any physical evidence to support the charges

against Bomar, which was an important piece of the defense.”

¶23    In Worthan v. State, 2010 MT 98, 356 Mont. 206, 232 P.3d 380, we held that a

defense counsel’s promise during opening statement to produce an expert who was not

ultimately called to testify, did not constitute ineffective assistance because it was not

prejudicial to Worthan. Worthan, ¶ 16. Similarly, it cannot be said that but for Bomar’s

counsel’s unfulfilled promise to present medical evidence, the result of the trial likely

would have been different, as required under the second prong of Strickland. Strickland,

466 U.S. at 694, 104 S. Ct. at 2068 (“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.”). We conclude that, because the issue of penetration was no

longer an issue, and counsel was nonetheless able to argue during closing that the State

failed to provide any evidence of physical injury to K.J., that counsel’s misstatement did

not prejudice the outcome of the trial.

¶24    Affirmed.

                                                /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS

                                          12
