APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DC 09-102 Honorable Wm. Nels Swandal, Presiding Judge
The opinion of the court was delivered by: Justice James C. Nelson
Submitted on Briefs: August 22, 2012
Decided: December 26, 2012
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Joseph Geren appeals his conviction in the District Court for the Sixth Judicial District, Park County, of ten felony sexual offenses. We affirm.
¶2 Geren raises three issues on appeal which we have restated as follows:
¶3 1. Whether the District Court abused its discretion when it failed to conduct a hearing on Geren's allegations that some jurors slept through critical portions of the trial testimony.
¶4 2. Whether Geren was subjected to double jeopardy when he was convicted of both incest and attempted incest arising out of what he asserts was a single transaction.
¶5 3. Whether the District Court committed structural error when it failed to arraign Geren on an amended charge.
Factual and Procedural Background
¶6 On March 31, 2011, a jury found Geren guilty of one count of Incest and one count of Attempted Incest involving his daughter, T.G.; four counts of Incest and one count of Sexual Intercourse Without Consent involving his step-daughter, K.D.; and two counts of Sexual Intercourse Without Consent and one count of Attempted Sexual Intercourse Without Consent involving his sister-in-law, S.H.
¶7 T.G. was 16 years old when the offenses in question occurred. At that time, she was living with Geren, her stepmother, her stepsister K.D. who was also 16 years old, and two younger siblings. T.G. testified at trial that she and Geren went out hunting on a Saturday afternoon in late November 2009. While they were driving in his truck, Geren told T.G. that her mother had told him that she had fantasies about Geren and T.G. having sex. As a result, Geren said he dreamed about having sex with T.G. T.G. testified that this discussion "weirded" T.G. out, but she tried to act normal.
¶8 T.G. further testified that later, as Geren and T.G. were hunting, Geren reached behind T.G., grabbed her on her butt, and asked her to kiss him. T.G. pushed him off, told him to kiss himself, and got back in the truck. Geren also got in the truck. He told T.G. that he wanted to "make out" with her. He grabbed T.G. by the arms and forced his tongue into her mouth. T.G. kept telling him it was "weird," but Geren told her it was not and that "the father/daughter thing is just a label." Geren stuck his hand down T.G.'s shirt, inside her bra, and touched her breast. Geren then removed his hand from her breast and tried to touch her on the outside of her pants in the front. When T.G. said she was having her period, Geren backed off.
¶9 T.G. stated that, sometime later, Geren asked her if he could "go down" on her and if she would "go down" on him. Geren said it would not take him long because he was "ready." Geren repeatedly asked T.G. to have oral sex with him, tried to kiss her, and tried to put his hand down her pants. T.G. kept protesting that it was not right and that Geren should take her home. Finally, T.G. told Geren that it was getting dark and that Geren's wife (T.G.'s stepmother) would be wondering why they were not home. While Geren was driving T.G. home, he told her that she did not need to tell anybody about what happened, that if she wanted to do it again he would "take care" of it, and that she could have unrestricted freedom on the weekends if she complied with his requests.
¶10 The following day, T.G.'s family had a gathering to celebrate her little brother's birthday. S.H., the 16-year-old sister of T.G.'s stepmother, attended the party. At one point during the party, T.G. and S.H. went inside the shed near T.G.'s house, and T.G. told S.H. what Geren had done. S.H. expressed her surprise that Geren would do that to his own daughter. S.H. then confessed to T.G. that one day when S.H. was home sick from school, Geren showed up at S.H.'s house and raped S.H. T.G. begged S.H. not to tell anyone about their conversation.
¶11 A few days after S.H. and T.G. confided in each other, S.H. told her parents and her twin sister, A.H., that both S.H. and T.G. had been sexually assaulted by Geren. The next day at school, A.H. convinced T.G. to talk with the school counselor, Katey Franklin. After relating her encounter with Geren to Franklin, T.G asked to speak with her step-sister, K.D., so Franklin brought K.D. to her office. When T.G. explained to K.D. what was happening, K.D. disclosed that Geren had been sexually abusing her as well.
¶12 K.D. related to Franklin and also testified at trial that Geren made her give him "blow jobs" and "hand jobs." K.D. testified that sometimes Geren put his mouth on her vaginal area or put his fingers inside her vagina. K.D. could not recall exactly how many times this happened, but that it happened at least weekly and continued over several months.
¶13 While K.D., T.G. and A.H. were in Franklin's office, S.H. went looking for her sister. When she found A.H. in Franklin's office and learned what was happening, S.H. disclosed to Franklin that she too had been sexually abused by Geren.
¶14 At trial, S.H. recalled four instances when Geren subjected her to sexual abuse. On the first occasion, Geren was helping S.H. and her father paint S.H.'s room. S.H. testified that when her father left to buy more paint, Geren forced S.H. to perform oral sex on him. She said that Geren ejaculated, and when he was finished, S.H. went into the bathroom and cried. On the second occasion, Geren showed up at S.H.'s house when S.H. was home alone. Geren took S.H. into her bedroom, forced S.H. to undress, and had vaginal intercourse with her. He then ejaculated on S.H.'s bed. On the third occasion, Geren, T.G., and S.H. were supposed to go hunting together, but T.G. decided not go. While alone with S.H., Geren forced her to engage in oral sex. On the fourth occasion, S.H. and A.H. were spending the night with T.G. and K.D. The next morning everyone except Geren left the house to visit another family member without awakening S.H. After everyone else left, Geren went to where S.H. was sleeping and forced her to perform oral sex on him.
¶15 S.H. further testified that Geren threatened that if she told anyone about these incidents, he would tell her parents about the older boy she was dating without her parents' knowledge or approval. S.H. estimated that Geren attempted to have oral sex with her on at least 15 other occasions, and that he would repeatedly unbutton her shirt and try to touch the private parts of her body.
¶16 On December 2, 2009, Detective Tony Steffins with the Park County Sheriff's Office conducted an interview with Geren. During this interview, which Detective Steffins recorded, Geren initially denied having any sexual contact with T.G., S.H., or
K.D. Instead, Geren speculated that S.H. had made the accusations against him because he had threatened to tell her parents about the older boy she was dating. He also speculated that T.G. and K.D. made allegations against him because he is strict and runs a "tight ship." However, later in the interview, Geren admitted that he had sexual contact with all three girls.
¶17 Geren was originally charged by Information on December 16, 2009, with two counts of Sexual Assault and one count of Sexual Intercourse Without Consent. On November 8, 2010, the State filed an Amended Information charging Geren with five counts of Incest, two counts of Sexual Intercourse Without Consent, two counts of Sexual Assault, and one count of Attempted Incest. On November 22, 2010, the State filed a Second Amended Information wherein the two counts of Sexual Assault were changed to two additional counts of Sexual Intercourse Without Consent. The State filed a Third Amended Information on February 17, 2011, clarifying the specific subsections of each statute that Geren allegedly violated on all ten counts charged. Geren was arraigned on the Third Amended Information on March 7, 2011. He pled not guilty to all ten counts.
¶18 A jury trial commenced on March 28, 2011. On the third day of trial, the State moved to amend one of the ten counts from Sexual Intercourse Without Consent to Attempted Sexual Intercourse Without Consent. The District Court granted the State's motion over Geren's objection.
¶19 At the close of the State's case, Geren moved to dismiss the charge of Attempted Incest involving T.G. Geren argued that if the jury convicted him of both Incest and Attempted Incest for the incidents with T.G., he would be subjected to double punishment for the same conduct because the attempt to commit incest is included in the offense of incest. The court indicated that if the jury convicted Geren of both offenses, it would consider his argument.
¶20 Geren testified in his own defense at trial and denied having sexual contact with any of the girls. He claimed that he admitted to the offenses in his interview with Detective Steffins because he was scared and he wanted the interview to be over.
¶21 On March 31, 2011, the jury found Geren guilty on all ten counts. After the jury's verdict, Geren filed a motion for a new trial arguing, among other things, that his convictions for Incest and for Attempted Incest violated his right against double jeopardy because Attempted Incest is a lesser included offense of Incest. Geren further argued in his motion that a new trial was necessary because several jurors may have been asleep during critical portions of the trial testimony.
¶22 The District Court denied Geren's motion noting that it had not noticed any juror sleeping as Geren alleged, and that Geren's convictions for both Incest and Attempted Incest did not violate double jeopardy principles. On September 6, 2011, the Court sentenced Geren to Montana State Prison for 15 years, with five years suspended, on each count. The court ordered that the sentences were to run consecutively. Geren now appeals the District Court's judgment and sentence.
¶23 This Court reviews a district court's grant or denial of a motion for a new trial for an abuse of discretion. State v. Parrish, 2010 MT 212, ¶ 14, 357 Mont. 477, 241 P.3d 1041 (citing State v. Clark, 2008 MT 391, ¶ 20, 347 Mont. 113, 197 P.3d 977). In order to establish that the court abused its discretion, a defendant must demonstrate that the court acted arbitrarily without conscientious judgment or exceeded the bounds of reason and, further, that the court's abuse of discretion was prejudicial. State v. Ariegwe, 2007 MT 204, ¶ 164, 338 Mont. 442, 167 P.3d 815 (citing State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45; § 46-20-701(1), MCA). We also review a district court's decision on whether to allow the amendment of an information for an abuse of discretion. State v. Scheffer, 2010 MT 73, ¶ 34, 355 Mont. 523, 230 P.3d 462 (citing State v. Wilson, 2007 MT 327, ¶ 19, 340 Mont. 191, 172 P.3d 1264).
¶24 In addition, determinations regarding double jeopardy protections under § 46-11-410, MCA, present questions of law that we review for correctness. State v. Williams, 2010 MT 58, ¶ 13, 355 Mont. 354, 228 P.3d 1127 (citing ...