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Kingsley Ariegwe v. State of Montana

August 9, 2012

KINGSLEY ARIEGWE, PETITIONER AND APPELLANT,
v.
STATE OF MONTANA, RESPONDENT AND APPELLEE.



APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-08-1227(a) Honorable Thomas M. McKittrick, Presiding Judge

The opinion of the court was delivered by: Patricia Cotter

August 9, 2012

Submitted on Briefs: May 30, 2012

Filed: Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Kingsley Ariegwe (Ariegwe) appeals from the Findings of Fact, Conclusions of Law, and Order (Order) entered by the Eighth Judicial District Court of Cascade County, Montana, denying his petition for post-conviction relief (PCR).

¶2 We affirm.

ISSUES

¶3 The dispositive issue on appeal is:

¶4 Did the District Court err when it denied Ariegwe's claim of ineffective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On January 15, 2003, Ariegwe, age 35, virtually met a 15-year-old female, K.M., in an Internet chat room. After chatting online and looking at her online profile, which included K.M.'s picture and age, Ariegwe gave K.M. his phone number. K.M. called Ariegwe, and on January 17, 2003, the two of them met in person and an alleged sexual encounter occurred. Shortly after the incident K.M. called her friend R.K. to tell her about it, stating that she had had sex with a 32-year-old man. Unknown to either of the girls, the phone conversation was inadvertently recorded on an answering machine at R.K.'s house. The tape of the conversation was preserved and is at issue in this appeal.

¶6 Ariegwe was charged with sexual intercourse without consent, a felony in violation of § 45-5-503, MCA (2001), attempted sexual intercourse without consent, a felony in violation of §§ 45-4-103 and 45-5-503, MCA (2001), and unlawful transactions with children, a misdemeanor in violation of § 45-5-623(1)(c), MCA (2001). A jury trial was held in early March 2004, at which Dr. Janet Merrill (Dr. Merrill), a licensed psychologist who had examined K.M., testified on behalf of the State without objection from Ariegwe's counsel.

ΒΆ7 During his opening statement, Ariegwe's counsel told the jury about the taped conversation between the girls and implied that the jury would get to listen to the recording of it during trial. However, defense counsel never offered the tape ...


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