                                                                                         December 11 2012


                                          DA 11-0496

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 282



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RICHARD PATTERSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Sixteenth Judicial District,
                        In and For the County of Custer, Cause No. DC-10-38
                        Honorable Gary L. Day, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Matthew J. Wald, Wald Law Office, Hardin, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Catherine Truman, Special Deputy Custer County Attorney,
                        Miles City, Montana




                                                    Submitted on Briefs: May 23, 2012

                                                               Decided: December 11, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     A Custer County jury found Richard Patterson guilty of two counts of sexual

intercourse without consent and one count of sexual assault. Patterson appeals from the

judgment entered against him by the Sixteenth Judicial District Court. We affirm.

¶2     The issues on appeal are:

¶3     1. Did the District Court’s application of Montana’s rape shield statute violate

Patterson’s right to a fair trial under the Montana and the United States Constitutions?

¶4     2. Did the District Court err in refusing to dismiss Counts I and IV on grounds

that the State of Montana failed to prove venue?

                                    BACKGROUND

¶5     In June of 2010, the State of Montana charged Richard Patterson with three counts

of sexual intercourse without consent, one count of felony sexual assault, and one count

of attempted sexual assault.    The four victims all were acquaintances or friends of

Patterson’s, and all five charged events were alleged to have occurred at Patterson’s

home in Miles City, Montana. Count I alleged that on October 18, 2009, Patterson

committed the offense of sexual intercourse without consent against A.K., who was then

eleven years old. Count II alleged that on May 15, 2010, Patterson committed the offense

of sexual intercourse without consent against T.P., an adult woman. Count III alleged

that, in May of 2006, Patterson committed the offense of sexual intercourse without

consent against J.L., an adult woman. Count IV alleged that in March of 2006, Patterson

committed the offense of felony sexual assault against K.W., who was 11 years of age at



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that time. Count V alleged that, several months after the occurrence alleged in Count IV,

Patterson committed the offense of felony attempted sexual assault against K.W.

¶6     Clothing worn on October 18, 2009, by A.K., the victim in Count I, was taken for

forensic testing at the Montana State Crime Lab, including DNA testing of a stain

discovered on A.K.’s shirt. The DNA testing excluded Patterson as a contributor to the

stain, and attributed the stain to an unknown male. Before trial, the State filed a motion

in limine based on Montana’s rape shield statute, asking the District Court to preclude

reference to, or evidence or testimony regarding, the DNA test of the stain on A.K.’s

shirt. Patterson opposed the motion in limine, and the District Court heard oral argument

on the matter.    The court ultimately granted the State’s motion and excluded from

evidence at trial any mention of the test results concerning the stain on A.K.’s shirt.

However, the court allowed evidence and argument that the clothing worn by A.K., and a

vaginal swab from her person, were analyzed and that Patterson’s DNA was not

discovered in that testing.

¶7     The alleged victims all testified at the four-day jury trial, as did various law

enforcement officers, A.K.’s and K.W.’s mothers, hospital emergency room personnel,

Patterson’s roommates, and two state forensic scientists. At the end of the State’s case at

trial, Patterson moved to dismiss Count V for insufficiency of evidence, and the District

Court granted that motion.

¶8     The jury found Patterson not guilty of one of the remaining charges, Count II, but

found him guilty of sexual intercourse without consent against A.K. as charged in Count

I, sexual intercourse without consent against J.L. as charged in Count III, and felony

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sexual assault against K.W. as charged in Count IV. At the sentencing hearing, the court

sentenced Patterson to concurrent Montana State Prison sentences of one hundred years

on Count I, fifty years on Count III, and one hundred years on Count IV.

                                       DISCUSSION

¶9     Issue 1. Did the District Court’s application of Montana’s rape shield statute
       violate Patterson’s right to a fair trial under the Montana and the United States
       Constitutions?

¶10    Generally, a trial court has discretion on questions regarding the admission of

evidence at trial, and we review the court’s evidentiary rulings for abuse of that

discretion. State v. Stock, 2011 MT 131, ¶ 17, 361 Mont. 1, 256 P.3d 899. However, in

exercising its discretion, the trial court is bound by the Rules of Evidence or applicable

statutes, and to the extent that the court’s ruling is based on an interpretation of an

evidentiary ruling or statute, our review is de novo.         Moreover, where the court’s

conclusions of law involve the Constitution or the rules of evidence, our review is,

likewise, de novo. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811.

Here, Patterson raises a constitutional claim—that his right to a fair trial was violated by

the trial court’s application of Montana’s rape shield statute. Since the District Court’s

interpretation and application of this statute implicate Patterson’s state and federal

constitutional rights to a fair trial, we review the court’s ruling de novo.

¶11    As indicated above, this issue relates to Count I of the Information, sexual

intercourse without consent against 11-year-old A.K. A.K. testified at trial that she and

her mother were visiting Patterson in his home, and that all three of them were in his bed

under the covers with the room light off. Patterson was in the middle, and A.K. thought

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her mother was sleeping. Patterson pulled up A.K.’s skirt and she felt him unbuttoning

his own pants. A.K. testified that she was “too scared to move” when Patterson then

moved her underwear to the side and began pushing his hips against her from behind.

She felt something on her skin in her “private area” between her legs, and then she felt

like that something was inside of her. After Patterson stopped pushing against her and

went into the bathroom, A.K. got her mother’s attention, and together they left

Patterson’s house and returned to their own home, where A.K. took a bath. A.K.’s

mother called the police and took A.K. to the hospital emergency room, where A.K. was

interviewed and examined.

¶12    Montana’s rape shield statute, under which the District Court excluded from trial

evidence that the shirt worn by A.K. on that night had a DNA stain on it and that DNA

testing of the stain had excluded Patterson as a possible contributor of the DNA, provides

that, in prosecutions for sexual crimes:

       [e]vidence concerning the sexual conduct of the victim is inadmissible . . .
       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. Patterson argues the District Court’s ruling deprived him of

his constitutional right to a fair trial.   He contends the rape shield statute was not

implicated under the facts of this case because of A.K.’s young age.         Even if that

argument fails, Patterson argues that the exception for “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” applies here. See § 45-5-511(2), MCA.


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¶13    In his first line of argument on this issue, Patterson states the sexual privacy of

11-year-old A.K. is not at issue, because any sexual conduct with an 11-year-old girl

would be illegal. However, Patterson has cited no authority to support his implied

proposition that Montana’s rape shield statute is limited to victims who have attained a

certain chronological age. Nor does § 45-5-511(2), MCA, include a statutory exception

allowing the admission of the prior sexual history of a child molestation victim. See State

v. Howell, 254 Mont. 438, 446, 839 P.2d 87, 92 (1992) (upholding a district court’s

discretion in excluding evidence of past sexual history of a child molestation victim).

¶14    Secondly, citing Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973),

and cases from several of our sister states, Patterson argues the District Court’s ruling

violated his right to a fair trial under the Due Process Clause because he was prevented

from presenting a crucial defense. Patterson claims the court’s ruling prejudiced his

ability to show that another offender committed the crime against A.K., and thus

prohibited him from enhancing his transfer of blame argument.

¶15    Chambers was a prosecution for the murder of a Mississippi police officer. In that

case, the trial court had excluded evidence that a person other than the defendant had

confessed to the crime, on hearsay grounds and under a Mississippi evidentiary rule that a

party may not impeach his own witness. On appeal, the United States Supreme Court

reversed the defendant’s conviction, reasoning that, in excluding that evidence, the trial

court had denied the defendant’s right to due process. Chambers, 410 U.S. at 302-03, 93

S. Ct. at 1049-50. It is true that Chambers stands for the general proposition that the

exclusion of exculpatory evidence that another party has committed a crime may deny a

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criminal defendant’s Sixth Amendment right to a trial in accord with fundamental

standards of due process. However, the Chambers Court acknowledged that the Sixth

Amendment is not absolute, and “may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Chambers, 410 U.S. at 295, 93 S. Ct. at

1046. And, while the cases Patterson has cited from other states are instructive, we must

decide this case based on the law as it exists in Montana.

¶16    In the present case, the District Court relied on our Opinion in State v. Bauer, 2002

MT 7, 308 Mont. 99, 39 P.3d 689, when it granted the State’s motion in limine to exclude

evidence under the rape shield statute. In Bauer, ¶ 31, we affirmed a trial court’s

exclusion from evidence of any reference to a DNA analysis showing that seminal fluid

on a blanket where the sexual offense occurred did not match the defendant’s DNA.

Patterson distinguishes this case from Bauer by pointing out that, in Bauer, the evidence

tested was not collected until four months after the alleged sexual crime. While it is true

that the evidence was promptly collected in the present case, Patterson has not

demonstrated why that distinction makes a difference for purposes of our analysis.

¶17    The rape shield statute “reflects a compelling interest in favor of preserving the

integrity of the trial and . . . preventing it from becoming a trial of the victim.” State v.

Johnson, 1998 MT 107, ¶ 19, 288 Mont. 513, 958 P.2d 1182 (quoting State v. Anderson,

211 Mont. 272, 283, 686 P.2d 193, 199 (1984)). For that reason, we have upheld the rape

shield statute as a legitimate interest justifying curtailment of the constitutional right to

confront witnesses. See State v. Van Pelt, 247 Mont. 99, 805 P.2d 549 (1991). We also

have recognized that, under the statute, there are only two types of instances in which the

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sexual conduct of a victim may be admitted. First, such evidence may be admitted when

the conduct involved the defendant as a participant. Second, such evidence may be

admissible when an issue exists as to the origin of semen, pregnancy, or disease, and the

victim’s sexual conduct is probative on that issue. State ex rel. Mazurek v. District

Court, 277 Mont. 349, 354, 922 P.2d 474, 477 (1996).

¶18    No claim has been made that the evidence concerning the stain on A.K.’s shirt is

related to the first type of instance that might justify admission of sexual conduct by

A.K.: prior conduct involving Patterson as a participant. As to the second type of

instance, we first observe that the prosecution of Patterson did not put the origin of the

DNA on A.K.’s shirt at issue. Further, evidence that the DNA stain on A.K.’s shirt was

from a male other than Patterson, in and of itself, is of no probative value as to a “specific

instance[] of [A.K.’s] sexual activity,” as referenced under § 45-5-511(2), MCA, because

the stain itself does not reveal how or when it got there.             Patterson wanted to

cross-examine A.K. on the origins of the stain on her shirt. But that would do nothing to

demonstrate Patterson’s innocence of the crime with which he was charged. Rather, such

evidence would simply go towards turning the case into a trial of A.K., the victim.

¶19    Exclusionary rules do not abridge a defendant’s right to present a defense as long

as the rules are not arbitrary or disproportionate to their purpose. Johnson, ¶ 22. Here,

we observe that the District Court permitted the defense to argue that A.K.’s rape

allegation was inherently incredible and that A.K. fabricated the rape allegation against

Patterson simply to get attention from her mother. In his closing argument, defense



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counsel also reminded the jury of the expert testimony that Patterson’s DNA was not

found on A.K.’s clothing or person.

¶20    Under the circumstances presented here, we hold that the District Court did not err

in prohibiting use at trial of the evidence that DNA from a male other than Patterson was

found on A.K.’s shirt.

¶21    Issue 2. Did the District Court err in refusing to dismiss Counts I and IV on
       grounds that the State of Montana failed to prove venue?

¶22    Proper venue is a jurisdictional fact that the State must prove at trial. State v.

Diesen, 2000 MT 1, ¶ 14, 297 Mont. 459, 992 P.2d 1287. In general, including in this

case, a criminal charge must be filed in the county in which the offense was committed.

See § 46-3-110(1), MCA.         See also Mont. Const. art. II, § 24 (“In all criminal

prosecutions the accused shall have the right to . . . a speedy public trial by an impartial

jury of the county or district in which the offense is alleged to have been committed,

subject to the right of the state to have a change of venue for any of the causes for which

the defendant may obtain the same.”). We review a district court’s legal conclusion

regarding venue under a de novo standard of review. Diesen, ¶ 11.

¶23    At the end of the State’s case at trial, Patterson moved to dismiss all five counts

charged against him on grounds that the State had failed to elicit sufficient testimony to

support the allegations that the offenses occurred in Custer County. The District Court

denied that motion to dismiss. Patterson makes a similar argument on appeal, but now

limits it to Counts I and IV.




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¶24   This Court has ruled direct testimony that an offense was committed in a specific

county is not required to prove venue. Venue may be sufficiently proven by witnesses’

references to either a city or city streets. See State v. Johnson, 257 Mont. 157, 161, 848

P.2d 496, 498 (1993). More recently, we have ruled that the State need only show that

the only rational conclusion to be drawn from the facts and testimony is that the crime

was committed in the county alleged. See State v. Galpin, 2003 MT 324, ¶ 30, 318 Mont.

318, 80 P.3d 1207.

¶25   Here, it was uncontroverted that Patterson committed the charged crimes at his

home. A.K., the victim of Count I, testified that Patterson raped her at his house. K.W.,

the victim of Count IV, testified that Patterson raped her in his bed, “in [his] room.”

Several witnesses testified that Patterson’s home was located at 23 Holly Street in Miles

City, Custer County. The only rational conclusion to be drawn from the testimony is that

the crimes occurred in Custer County. We hold that the District Court did not err in

denying Patterson’s motion to dismiss Counts I and IV.

¶26   Affirmed.


                                                                 /S/ JAMES C. NELSON


We Concur:

/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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