                                                                                                 05/05/2020


                                          DA 18-0101
                                                                                             Case Number: DA 18-0101

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2020 MT 116N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.
                                                                             FILED
SCOTT ALAN COOK,
                                                                              MAY 0 5 2020
                                                                            Bowen GreenwoodCourt
                                                                          Clerk of Supreme
              Defendant and Appellant.                                       State of Montana




APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. BDC 2016-512
                       Honorable Michael F. McMahon,Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       Leo J. Gallagher, Lewis and Clark County Attorney, Ann Penner, Deputy
                       County Attorney, Helena, Montana



                                                    Submitted on Briefs: April 1, 2020

                                                               Decided: May 5, 2020


Filed:


                                            Clerk
Chief Justice Mike McGrath delivered the Opinion ofthe Court.


¶1       Pursuant to Section I, Paragraph 3(c), 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       Scott Alan Cook appeals following a conviction for Sexual Assault, a felony, in

Montana's First Judicial District Court. We affirm.

¶3       In 2015, A.Y., at the time two years old, and two of her siblings, were removed

from their parents' custody and placed in the protective care of their grandmother, Angel

Kramer, and her husband, Scott "Pape Cook, in Helena, Montana.' In November 2016,

while Krarner was driving A.Y. to speech therapy, A.Y. made a statement to Kramer that

"Papa has a pink penis like Aries,2 and that he touched [rny] butt." A.Y. repeated the

statement and then made huffing sounds, consistent with noises rnade during intercourse.

Kramer confronted Cook about the incident and notified law enforcement. Cook went to

the Helena Police Department and provided a voluntary statement, recorded as a video

interview. Cook told the police that Kramer told him that A.Y had said that he had a "big



    I Cook did not dispute at any time throughout the case where he, Kramer, or the children
lived. No evidence was admitted at trial that he or the victim lived anywhere other than Helena,
Montana, during the time the alleged abuse occurred. The District Court determined before trial
that circumstantial evidence established Cook's opportunity to commit the abuse due to the times
"he was or could have been alone with A.Y."

     2 Aries   was the family dog.
                                               2
pink penis and touched her butt with it."            Cook denied any wrongdoing but

acknowledged that "three year olds don't just say—somebody put a—big large penis on

their butt." The Helena Police continued to investigate the case, conducting a search of

Cook and Angel's residence in Helena.

¶4     On November 23, 2016, the State filed an Information, charging Cook with Sexual

Assault, a felony, in violation of § 45-5-502(1) and (3), MCA. The Inforrnation alleged

the assault occurred "on or about during the approximate two-year period prior to

November 8, 2016 . . . ." On February 8, 2017, the court held a hearing on the State's

rnotion to introduce at trial A.Y.'s hearsay statement. At the hearing, Krarner confirmed

to the court that A.Y. made two statements to her in November 2016: the first—that

"Papa's got a big penis like Aries. Big, pink penis like Aries." After the first statement,

Kramer said there was a short pause, and then A.Y. said "[Papa] has a big pink penis and

touches my butt with it," and made huffing noises. The court deterrnined that A.Y.'s

statements were admissible under Montana's Child Hearsay statute, § 46-16-220, MCA.

¶5     From August 7 to 11, 2017, a jury trial was held. Cook's attorney informed the

jury during opening statements that "the reason we are here, is that Angel Kramer claims

that she heard [the victim] say, 'Papa has a pink penis, and he puts it on my butt.'"

Cook's video testirnony frorn the police station was also admitted into evidence without

objection. After the close of the State's case-in-chief, the defense moved for a directed

verdict for insufficient evidence, arguing that the child hearsay statement did not provide

any indication that A.Y. was assaulted by Cook. The court denied Cook's motion,



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explaining "I think what you're really arguing is credibility with respect to the

grandmother, and that issue is right smack dab in the jury's hands."

¶6      During trial, Cook acknowledged that Kramer told him that A.Y. had said "that

[he] put [his] pink penis on her butt[.]" Cook admitted that he told the police that

three-year-olds do not just make something like that up and did not offer an explanation

as to why A.Y. would say something like that. In closing argument, the State made a

number of references to the version of A.Y.'s statement as recounted by Cook. Cook's

attorney did not object to these statements.3

¶7     The jury deliberated for over a day and a half. During deliberations, the jury sent

back a number of notes to the court. One note read, "after a long deliberation, and a

couple votes, we are at six guilty and six not guilty. I don't see this changing soon." The

State responded, "it sounds like they are hung, Judge." The District Court agreed and

offered a continuing instruction frorn the Montana Pattern Jury Instructions to address

instances of a hung jury. Cook objected, arguing that by giving the instruction it seemed

to suggest to the jury that they needed to think about changing their vote. The court

overruled Cook, stating "that's not the Court's intention and I don't think that's the

intention of the pattern jury instruction. We have a note that says at the end,       don't see

this changing soon.' I don't have a note saying this is not going to change."




    3 Cook did object to other statements made by the State during closing argument, which are
not on appeal here, that such statements were not in evidence. The District Court overruled the
objection, explaining that "the jury is reminded that it weighs the evidence and, as I indicated
before, statements made by counsel are not evidence."
                                                4
¶8     The District Court thereafter provided the continuing instruction to the jury. This

instruction stated in part, "It is the task of the jury to decide the case. You are neutral

judges of the facts. It is you and you alone that can decide this cause." The instruction

further stated, "This instruction is not rneant to coerce or force a verdict. You should take

as much time as needed in your deliberations." The jury found Cook guilty of sexual

assault of a child. The court sentenced Cook to 60 years in the Montana State Prison with

no time suspended. Cook appeals, arguing:(1)the trial court lacked jurisdiction over the

case;(2) Cook's right to a fair trial was violated by the State's repeated misstatements of

A.Y.'s hearsay statement;(3) Cook's counsel was ineffective for failing to object to these

misstatements; and (4) the court irnproperly coerced the jury by issuing its continuing

instruction.

¶9     A trial court's determination as to whether it has jurisdiction is a conclusion of law

which we review de novo. Stanley v. Lemire, 2006 MT 304, ¶ 52, 334 Mont. 489, 148

P.3d 643. This Court generally does not address issues of prosecutorial misconduct

pertaining to a prosecutor's statements if those statements were not objected to at trial.

State v. Ugalde, 2013 MT 308, ¶ 27, 372 Mont. 234, 311 P.3d 772. However, this Court

may discretionarily review such claims on appeal under the plain error doctrine. Ugalde,

¶ 27. Claims of ineffective assistance of counsel are mixed questions of law and fact

subject to de novo review. Baca v. State, 2008 MT 371, ¶ 8, 346 Mont. 474, 197 P.3d

948. We review a district court's jury instructions for an abuse of discretion. State v.

Tellegen, 2013 MT 337,¶ 5, 372 Mont. 454, 314 P.3d 902.



                                             5
¶10    Cook argues that the court did not have territorial jurisdiction to hear the case

because the trial record contains no evidence indicating where the alleged assault

occurred. Jurisdiction concerns the court's authority to adjudicate a proceeding. City of

Helena v. Frankforter, 2018 MT 193, ¶ 18, 392 Mont. 277, 423 P.3d 581. Article VII,

Section 4(1), of the Montana Constitution irnparts original jurisdiction on all district

courts for all crirninal cases amounting to a felony. A person is subject to prosecution in

Montana for an offense committed "either wholly or partly within the state[J" Section

46-2-101(1)(a), MCA. In a criminal proceeding, the prosecution must establish that the

trial court has jurisdiction to preside over the trial. Frankforter,¶18.

¶11    Here, from the tirne A.Y. began to live with Cook and Kramer until Kramer

reported the alleged abuse, it is undisputed that Cook and the victim lived in Helena.

Cook and Kramer's home was subject to a search by the Helena Police Department in

connection with the alleged crime. Cook also reported to the Helena Police and provided

a voluntary statement. In fact, there is no information in the record suggesting Cook or

the victim were anywhere other than Lewis and Clark County, Montana, throughout the

time period in which the abuse could have occurred. The District Court had jurisdiction

and Lewis and Clark County was the appropriate place for trial.

¶12    Cook also argues that the State committed prosecutorial misconduct amounting to

a due process violation by repeatedly misstating the victim's hearsay statement to the jury

during closing argument. Cook asserts that the State repeatedly told the jury that A.Y.

told Kramer that "Papa has a pink penis and he put it on my butt," when the correct

statement, recalled by Kramer during the first day oftrial, was "Papa has a pink penis like

                                             6
Aries," and that he touched her butt. Cook further argues that his counsel was ineffective

for failing to object to any of the State's misstatements.

¶13    In determining whether statements by the prosecution constitute reversible error,

we analyze whether the statement was improper, and if so, whether the improper

statement prejudiced the defendant. State v. Dobrowski, 2016 MT 261, ¶ 28, 385 Mont.

179, 382 P.3d 490. The prosecution's presentation of false evidence amounts to a due

process violation if the criminal defendant can prove: (1) the testimony or evidence in

question was actually false, (2) the prosecution knew or should have known that the

testimony or evidence was false, and (3) the false testimony or evidence was material.

State v. Wright, 2011 MT 92, ¶ 28, 360 Mont. 246, 253 P.3d 838.

¶14    The State's rendition of A.Y.'s hearsay statement during closing argument was not

prosecutorial misconduct. At the pretrial hearing on child hearsay testimony, Kramer

confirmed to the court that A.Y. made a statement to the effect of "Papa has a big pink

penis and touches iny butt with it." Both the State and the defense referenced this version

of Kramer's account during opening statements.          Cook's video testimony from the

Helena Police Department reflected a statement similar to that referenced by the State in

closing argument. And, at trial, Cook adrnitted that this version was the statement that

A.Y. allegedly told Krainer. The State's reference to one version of A.Y.'s statement

during closing argurnent was not a mischaracterization of the evidence, amounting to

prosecutorial misconduct.     Moreover, Cook had an opportunity to point out the

inconsistent recollections of A.Y.'s purported statement during closing argument but did



                                             7
not. Because the statements rnade by the State during closing argument were not

improper, Cook's counsel was not ineffective for failing to object to these statements.

¶15       Finally, Cook argues that the District Court's continuing instruction, and

specifically, the single line "you and you alone can decide this cause," was coercive to

the jury and violated his right to a fair trial. Criminal defendants have a constitutional

right to an uncoerced jury verdict. State v. Sweet, 2018 MT 263, ¶ 10, 393 Mont. 202,

429 P.3d 912. "A jury instruction is coercive if it directs the minority of jurors to

reconsider their views in light of the majority, instructs the jurors that they have to reach

a decision, or pressures the jurors into returning a unanimous verdict." State v. Santiago,

2018 MT 13, ¶ 9, 390 Mont. 154, 415 P.3d 972. While undue pressure is not allowed, a

court may provide an Allen4 instruction to a deadlocked jury as a reminder that the jury

must "consider the facts of the case, deliberate with one another, and atternpt to reach a

unanimous verdict." Santiago, ¶ 10.

¶16      The instruction Cook challenges is virtually identical to the revised instruction

froin State v. Norquay, 2011 MT 34, 359 Mont. 257, 248 P.3d 817, and upheld in

Santiago and Sweet. We have not found, nor do we find now, that the instruction is

coercive, contains language instructing minority jurors to reconsider their views in light

of the majority, or requires that a jury reach a verdict. See Norquay, ¶ 37; Santiago, ¶ 17;

Sweet, ¶ 13. Instead, the Norquay instruction encourages jurors to collaborate without

resigning their convictions, in coinpliance with Montana law. Santiago, ¶ 17; Sweet,




   4   Allen v. United States, 164 U.S. 492, 17 S. Ct. 154(1896).
                                                 8
¶ 13. The continuing instruction adrninistered by the District Court was not coercive,

violating Cook's right to a fair trial.

¶17    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 ofreview.

¶18    Affirmed.



                                                           Chief Justice


We Concur:




                Justices




                                           9
Justice Ingrid Gustafson, dissenting.

¶19    I dissent from the majority's conclusion that the instruction challenged by Cook,

generally known as the "dynamite instruction," is not coercive but rather encourages jurors

to collaborate without resigning their convictions to reach a verdict.

¶20    Despite that the instruction Cook challenges is virtually identical to the revised

instruction from State v. Norquay, 2011 MT 34, 359 Mont. 257, 248 P.3d 817, and this

Court's precedence in subsequently upholding the instruction in State v. Santiago, 2018

MT 13, 390 Mont. 154, 415 P.3d 972, I would conclude, in this instance, the instruction

was coercive and misstated the jury's obligation. Specifically, I am troubled by the

language, "It is you and you alone that can decide this cause." This language implies a

misstatement of law—that if this jury does not reach a verdict, no verdict could ever be

rendered and retrial is not possible. This statement does not accurately advise that in the

event the jury is unable to reach a unanimous verdict, a mistrial would be declared and the

matter would be reset for another trial.

¶21    While I believe there are better ways of determining if additional deliberation will

make it possible for the jury to reach a verdict, at a minimum, the language, "It is you and

you alone that can decide this cause" should be removed from the dynamite instruction as

an inaccurate statement of law.




                                                                    Justice



                                            10
