                                                                                                 10/04/2016


                                           DA 14-0417
                                                                                             Case Number: DA 14-0417

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 244



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JORY ROBERT HOFF,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2013-247
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana

                For Appellee:

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

                        Leo Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy
                        County Attorney, Helena, Montana


                                                    Submitted on Briefs: August 17, 2016

                                                                Decided: October 4, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Jory Robert Hoff (Hoff) appeals from final judgment entered in the First Judicial

District Court, Lewis and Clark County, after a jury found him guilty of sexual assault

and sexual intercourse without consent. We affirm.

                                          ISSUES

¶2     Hoff raises three issues on appeal:

       1. Did the District Court violate Hoff’s constitutional right to a public trial when
          it closed to the public a hearing on the admissibility of the victim’s prior
          allegations of sexual abuse?

       2. Did the District Court err in preventing Hoff from questioning the victim about
          prior allegations of sexual abuse?

       3. Did the District Court err by not disclosing information contained in
          confidential records after conducting an in camera review?

                                     BACKGROUND

¶3     I.L. was born in 2002, and her parents separated soon thereafter. I.L. lived with

her mother, except for a period between 2008 and 2010, when I.L. lived on and off with

her father, her father’s sister, and her maternal grandparents. In 2011, I.L.’s mother

began dating and living with Hoff. I.L.’s mother worked evenings twice a week and left

I.L. in the care of Hoff or I.L.’s maternal grandfather on those nights.

¶4     In July 2013, when I.L. was 11 years old, she had an argument with her mother

and said she wanted to live with her father. I.L.’s parents arranged for her father to take

I.L. to his house, where he lived with his new wife. Because I.L.’s father traveled for

work, I.L. was often left in her stepmother’s care. This living arrangement lasted for

about two weeks, until I.L’s father and stepmother were both scheduled to travel out of


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state. I.L.’s stepmother offered to take I.L. with her, but I.L.’s mother refused to give

permission to take I.L. out of state.

¶5     Because both her father and stepmother would be away, I.L.’s stepmother told I.L.

she would have to go back to her mother’s house. I.L. became upset and started crying.

When her stepmother asked what was wrong, I.L. said Hoff had sexually assaulted her

when she was staying with Hoff and her mother. I.L.’s stepmother then called the police

and relayed what I.L. had said. I.L. underwent a forensic interview two days later, during

which she said Hoff had been touching her inappropriately almost every night for two

years. Hoff was arrested the day of I.L.’s forensic interview. He has denied that he

touched I.L. inappropriately.

¶6     During pretrial discovery, the State and Hoff jointly moved for an in camera

review of certain records maintained by the Department of Public Health and Human

Services (DPHHS) pertaining to I.L.’s accusations against Hoff. The District Court

conducted its in camera review and released relevant records. These records contained

references to statements I.L. made when she was four, which accused two other men of

sexual assault. Hoff then filed a second motion for in camera inspection of additional

DPHHS records regarding these prior accusations. The District Court reviewed and

released four more pages of DPHHS records, with redactions.

¶7     Before trial, Hoff requested a preliminary hearing on the admissibility of the prior

accusations made by I.L. Hoff maintained those accusations were false and therefore

relevant to the veracity of I.L.’s present accusations against Hoff.      In State ex rel.

Mazurek v. Dist. Court of the Mont. Fourth Judicial Dist., 277 Mont. 349, 357–58, 922


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P.2d 474, 479–80 (1996), we adopted a three-part test governing the admissibility of prior

accusations of sexual assault. That test requires a district court to determine, among other

things, that the prior accusations were in fact false. Mazurek, 277 Mont. at 358, 922 P.2d

at 480. Hoff requested the Mazurek hearing to give him the opportunity to show the prior

accusations were false and therefore admissible at trial.

¶8     On the day of the Mazurek hearing, the State asked the District Court to close the

hearing to the public. The State reasoned that the hearing would involve confidential and

sensitive records detailing the prior accusations, which necessitated closure to maintain

confidentiality. Hoff objected to closing the hearing, arguing that no statute or precedent

supported closing the hearing simply because it dealt with sensitive material. Because

the whole trial concerned sensitive material, Hoff maintained that the hearing should

remain open. Ultimately, the District Court closed the hearing to the public, although

witnesses slated to testify at the hearing remained in the courtroom throughout the

hearing.

¶9     After the hearing, the District Court issued a written order denying the admission

of the prior accusations. The District Court stated:

       [T]he evidence does not show, as required by Mazurek, that the accusations
       were in fact false. Further, while the accusations are certainly suspicious
       and raise question in the Court’s mind, it has not been shown to the
       satisfaction of this Court that the prior accusations were in fact false. Here,
       the Court is focusing on Mazurek’s requirement that the accusations be “in
       fact false.” In the view of this Court, this requirement was fleshed out by
       the Supreme Court’s holding that the prior assault allegations need to be
       adjudicated to be false or admitted to be false. Here, there has been no such
       adjudication or admission.




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(emphasis in original).    Because the District Court found the second condition of

Mazurek was not satisfied, it prohibited Hoff from cross-examining I.L. about the prior

accusations at trial.

¶10    Following a four-day trial, the jury found Hoff guilty on both counts.

                              STANDARDS OF REVIEW

¶11    This Court’s review of constitutional questions is plenary. State v. Johnson, 2015

MT 221, ¶ 10, 380 Mont. 198, 356 P.3d 438. We review a district court’s evidentiary

ruling for an abuse of discretion. State v. MacKinnon, 1998 MT 78, ¶ 12, 288 Mont. 329,

957 P.2d 23. A court abuses its discretion if it “acts arbitrarily without conscientious

judgment or exceeds the bounds of reason, resulting in substantial injustice.” State v.

Henson, 2010 MT 136, ¶ 19, 356 Mont. 458, 235 P.3d 1274. To the extent a court’s

evidentiary ruling is based on an interpretation of a constitutional right, our review is de

novo. State v. Patterson, 2012 MT 282, ¶ 10, 367 Mont. 186, 291 P.3d 556.

                                      DISCUSSION

¶12 1. Did the District Court violate Hoff’s constitutional right to a public trial when
it closed to the public a hearing on the admissibility of the victim’s prior allegations of
sexual abuse?

¶13    The Sixth Amendment to the U.S. Constitution provides criminal defendants the

“right to a speedy and public trial.” U.S. Const. amend. VI. The public trial right

benefits the accused to the extent “the presence of interested spectators may keep his

triers keenly alive to a sense of their responsibility and to the importance of their

functions.” Waller v. Ga., 467 U.S. 39, 46, 104 S. Ct. 2210, 2215 (1984) (internal




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quotation omitted). Open proceedings are particularly important in pretrial suppression

hearings. Waller, 467 U.S. at 47, 104 S. Ct. at 2216.

¶14    Nevertheless, the right to a public trial may yield to “‘an overriding interest based

on findings that closure is essential to preserve higher values and is narrowly tailored to

serve that interest.’” Waller, 467 U.S. at 45, 104 S. Ct. at 2215 (quoting Press-Enter. Co.

v. Super. Court of Cal., 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984)). Following

Waller, the right to a public trial may give way if: (1) the party seeking to close the

hearing advances an overriding interest that is likely to be prejudiced; (2) the closure is

no broader than necessary to protect that interest; (3) the court considers alternatives to

closing the proceeding that would still protect the interest; and (4) the court makes

findings adequate to support the closure. Waller, 467 U.S. at 48, 104 S. Ct. at 2216.

¶15    Preventing the disclosure of sensitive information is a sufficiently strong interest

to override the general presumption of openness in trials.       Waller, 467 U.S. at 45,

104 S. Ct. at 2215. Few cases present that interest more starkly than the sexual assault of

a minor. In Globe Newspaper Co. v. Super. Court, 457 U.S. 596, 102 S. Ct. 2613 (1982),

the U.S. Supreme Court noted that “safeguarding the physical and psychological

well-being of a minor” is a compelling interest, but held unconstitutional a law that

required automatic closure during a minor victim’s testimony. Globe Newspaper Co.,

457 U.S. at 607–08, 102 S. Ct. at 2620–21. Instead, courts should consider the nature of

the crime, the age and maturity of the victim, and the victim’s wishes before making a

case-by-case decision to close the trial for the victim’s testimony. Globe Newspaper Co.,

457 U.S. at 608, 102 S. Ct. at 2621. No one factor is determinative, and the decision to


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close a hearing is ultimately left to the trial court’s discretion. Bell v. Jarvis, 236 F.3d

149, 171 (4th Cir. 2000) (citing Globe Newspaper Co., 457 U.S. at 609, 102 S. Ct. at

2621).

¶16      While the final element of the Waller test requires findings that support closure,

the findings do not need to be exceptionally detailed. Rather, the trial court’s findings

need only be “specific enough that a reviewing court can determine whether the closure

order was properly entered.” Press-Enter. Co., 464 U.S. at 510, 104 S. Ct. at 824; accord

Waller, 467 U.S. at 45; Bell, 236 F.3d at 172.

¶17      Hoff argues the District Court’s closure of the Mazurek hearing violated his right

to a public trial.     Specifically, Hoff contends the State’s interest—protecting the

confidentiality of sensitive information that could further injure I.L.—is not substantial

enough to justify closure. Even if the interest was substantial, Hoff maintains that the

State failed to show, and the District Court failed to find, that the interest was likely to be

prejudiced and that there were no reasonable alternatives to closing the hearing. Hoff

reasons that leaving the Mazurek hearing open would not jeopardize the State’s interest

for two primary reasons. First, significant portions of the hearing concerned topics that

did not implicate I.L.’s private information, like the procedures used in DPHHS

investigations.    Second, those portions of the hearing that did touch I.L.’s private

information could be redacted or otherwise anonymized for her protection.

¶18      The right to a public trial clearly attaches to pretrial suppression hearings,

including a Mazurek hearing. Thus, Hoff’s right to a public Mazurek hearing will only

yield to an overriding interest that satisfies the Waller analysis. Although the District


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Court’s decision to close the hearing did not set forth detailed findings, we conclude for

the reasons set forth below that the District Court did not err in closing the Mazurek

hearing.

¶19    The Montana Legislature has created two distinct statutory safeguards against the

disclosure of information that could cause further emotional injury to a minor victim of

sexual assault. First, DPHHS records and reports concerning child abuse and neglect are

deemed confidential by § 41-3-205(1), MCA. These records may be disclosed if, after an

in camera review, a court “finds disclosure to be necessary for the fair resolution of an

issue before it.” Section 41-3-205(2), MCA. Second, to avoid putting a victim of sexual

assault on trial for his or her past conduct, evidence of a victim’s prior sexual conduct is

generally inadmissible under the “rape shield statute,” § 45-5-511(2), MCA. Because

Mazurek hearings involve evidence of prior sexual conduct that may be protected by the

rape shield statute, we anticipated in Mazurek that these hearings would be conducted

in camera. Mazurek, 277 Mont. at 358, 922 P.2d at 480.

¶20    In the present case, the State cites both of these statutory provisions as grounds for

closing the Mazurek hearing. As made clear in Globe Newspaper Co., shielding I.L.

from further psychological injury is a sufficiently compelling interest to justify closure.

While Hoff contends the hearing could have remained public with some redactions of the

documents to be presented, the District Court had already reviewed the documents

in camera and was aware of their contents. We have also reviewed the contents of the

confidential documents.      We are unconvinced that the records could have been

anonymized to protect I.L., as the documents were rife with identifying information.


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Simply initializing I.L.’s name would not have protected her privacy because her mother

testified at the hearing. To go a step further and redact all references to I.L. or her

statements would hardly serve Hoff’s purpose of showing I.L. lied in making the prior

accusations.      We therefore conclude that there were no reasonable alternatives for

protecting I.L.

¶21    Hoff requested the Mazurek hearing to explore in detail the facts and

circumstances surrounding the prior accusations. At the hearing, Hoff presented DPHHS

records and questioned witnesses involved in the investigation of the prior accusations.

Invariably, some of Hoff’s evidence focused on the procedures used to investigate the

prior accusations.     To the extent this foundational evidence addressed investigation

procedures in general, the interest in protecting I.L. was not in great jeopardy. Still, the

fact that Hoff was required to lay some foundation before exploring the accusations does

not mean the District Court should have opened and closed the hearing every time a

witness’s testimony shifted in purpose.     We do not read Waller to impose such an

impractical burden on trial courts. Thus, we conclude the closure was no broader than

necessary to protect I.L.

¶22    The District Court closed the hearing after brief oral arguments from both parties.

Because the District Court’s decision was not made in writing, the record does not

contain many detailed findings. Nevertheless, the record provides sufficient context to

show why the District Court closed the hearing. I.L. was four at the time of the prior

accusations and eleven at the time of Hoff’s trial. The prior accusations concerned sexual

assault of a minor, a crime that demonstrates contempt for the physical and psychological


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wellbeing of the most vulnerable members of our communities. The record gives no

indication of I.L.’s wishes regarding public disclosure of the prior accusations, but Globe

Newspaper Co. does not require the court to ascertain a victim’s wishes in every case.

The victim’s wishes are one of several factors to be considered, and no single factor is

dispositive. Globe Newspaper Co., 457 U.S. at 608, 102 S. Ct. at 2621. In this case, the

nature of the crime, the age and maturity of I.L., and the need to safeguard her physical

and psychological wellbeing are all factors that favor closing the Mazurek hearing.

Because the weight of these factors was apparent when the District Court orally closed

the hearing, we see no reason to fault the District Court for not explaining them in detail.

As in Bell, the trial judge here “possessed a great deal of information concerning the case

before him, and certainly knowledge sufficient to exercise the discretion afforded him

under both federal and state law.” Bell, 236 F.3d at 171–72. We therefore conclude the

District Court did not err in closing the Mazurek hearing.

¶23 2. Did the District Court err in preventing Hoff from questioning the victim about
prior allegations of sexual abuse?

¶24    Criminal defendants have the right to confront witnesses against them.          U.S.

Const. amend. VI.      “‘[L]imiting or barring a defendant’s cross-examination of a

complaining witness in a sex crime case where there is evidence of prior false accusations

restricts defendant’s enjoyment of the worth of his constitutional rights to confront

witnesses.’” Mazurek, 277 Mont. at 358, 922 P.2d at 479 (emphasis added) (quoting

State v. Anderson, 211 Mont. 272, 284, 686 P.2d 193, 200 (1984)).              If the prior

accusations were true, evidence of the accusations would be irrelevant, highly prejudicial,



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and inadmissible. Mazurek, 277 Mont. at 356, 922 P.2d at 479 (citing Anderson, 211

Mont. at 284, 686 P.2d at 200). A court may only admit evidence of prior accusations if

the court first determines: (1) the accusations were in fact made; (2) the accusations were

in fact false; and (3) the evidence is more probative than prejudicial. Mazurek, 277 Mont.

at 358, 922 P.2d at 480 (citing Miller v. State, 779 P.2d 87, 90 (Nev. 1989)). We have

explained the “in fact false” caveat as meaning the accusations must be adjudicated or

admitted to be false. Mazurek, 277 Mont. at 359, 922 P.2d at 480. For the purposes of a

Mazurek hearing, “adjudicated” does not necessarily mean a court has previously heard

evidence and rendered a final judgment on the accusation. Instead, the court conducting

the Mazurek hearing may, after hearing sufficient evidence, adjudicate the falsehood of a

previous accusation in the Mazurek hearing. Mazurek, 277 Mont. at 357, 922 P.2d at

479.

¶25    I.L.’s prior accusations of sexual assault made when she was four years old were

referred to DPHHS. The agency’s reports on the prior accusations indicate a child

protection team reviewed the claims. At the Mazurek hearing, a representative from

Child Protective Services testified that her department did not investigate the accusations

because they did not implicate a parent in the abuse. Instead, the DPHHS reports indicate

the accusations were referred to law enforcement for investigation. The record does not

show any further action taken by law enforcement.

¶26    Hoff argues the District Court misconstrued the “in fact false” requirement as a

strict burden to show a formal adjudication or admission. Hoff calls our attention to

language from the District Court’s order, which bears repeating:


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       Here, the Court is focusing on Mazurek’s requirement that the accusations
       be “in fact false.” In the view of this Court, this requirement was fleshed
       out by the Supreme Court’s holding that the prior assault allegations need
       to be adjudicated to be false or admitted to be false. Here, there has been
       no such adjudication or admission.

Hoff asserts that this language shows the District Court expected a formal adjudication or

admission. However, full context shows the District Court considered Hoff’s evidence

and found it insufficient to conclude the accusations were false.

¶27    If the District Court believed that only formal adjudication or admission could

show the prior accusations were in fact false, only two pieces of evidence would be

relevant: proof of an adjudication or proof that I.L. admitted the prior allegations were

false. Hoff presented no evidence of an admission of falsehood at the hearing, but he did

put on evidence from investigators and others in an attempt show the accusations could

not be true. Hoff did not argue, nor could he credibly argue, that the actions of DPHHS

and law enforcement in investigating allegations of childhood sexual assault constituted

an adjudication of the allegations’ truth.        Consequently, Hoff’s evidence would be

irrelevant and inadmissible if the District Court erroneously believed only a formal

adjudication could demonstrate the falsity of the allegations. In fact, the District Court

considered Hoff’s evidence.       Ultimately, the District Court found the accusations

“certainly suspicious,” but concluded this suspicion was not substantial enough to show

the accusations were in fact false.

¶28    Because the District Court evaluated Hoff’s evidence in accord with Mazurek, we

will overturn its decision to exclude the prior accusations only if we find an abuse of

discretion. Hoff presents an array of facts which he believes shows the prior accusations


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could not be true. We cannot agree that these seven-year-old claims were established to

be false, nor does the record before us demonstrate that the District Court exceeded the

bounds of reason or acted without conscientious judgment. We therefore conclude that

the District Court did not abuse its discretion in denying admission of the prior

accusations.

¶29 3. Did the District Court err by not disclosing information contained in sealed
records after conducting an in camera review?

¶30    Criminal defendants have a due process right to information that is favorable to

their defense and material to guilt or punishment. State v. Johnston, 2014 MT 329,

¶¶ 6-9, 337 Mont. 291, 339 P.3d 829 (citing Pa. v. Ritchie, 480 U.S. 39, 57, 107 S. Ct.

989, 1001 (1987)). In cases involving alleged sexual assault of a minor, this right extends

to confidential files compiled by DPHHS. Johnston, ¶¶ 6–9. Evidence “is material only

if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.”        Ritchie, 480 U.S. at 57,

107 S. Ct. at 1001.

¶31    After an in camera review of the DPHHS files regarding I.L.’s prior allegations,

the District Court withheld certain portions of the files from the parties. Hoff has asked

this Court to review the files the District Court kept sealed to determine if they contain

information that could be material to Hoff’s defense. We have reviewed the sealed files

in camera and determined that they do not contain any new, material information that the

parties lacked at trial.   The only redactions were for the protection of personally

identifiable information. Because there is no reasonable probability that the outcome of



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Hoff’s trial would have been different with the release of the files, Hoff’s due process

right was not violated. See Ritchie, 480 U.S. at 57, 107 S. Ct. at 1001. We therefore

conclude that the District Court did not err in keeping the records sealed.

                                     CONCLUSION

¶32    For the foregoing reasons, we affirm the judgment of the District Court.


                                                  /S/ PATRICIA COTTER


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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