APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DC-09-194 Honorable Brad Newman, Presiding Judge
The opinion of the court was delivered by: Justice James C. Nelson
Submitted on Briefs: July 18, 2012
Decided: December 27, 2012
Justice James C. Nelson delivered the Opinion of the Court.
¶1 A jury in the Second Judicial District Court, Silver Bow County, convicted Benny Roe Stewart of one count of incest. Stewart now appeals, seeking to have his conviction reversed and vacated and the case remanded for a new trial. Stewart raises the following issues on appeal:
1. Whether Stewart is entitled to a new trial due to law enforcement's warrantless monitoring and recording of his telephone conversations with his daughter.
2. Whether the District Court abused its discretion in admitting sexually oriented photographs which Stewart took of his daughter.
BACKGROUND The Sexual Abuse and Reporting
¶2 The jury convicted Stewart of sexually molesting his daughter, A.S., over a period of 11 years, from 1998 to 2009. A.S. testified at trial concerning the abuse. She stated that the sexual contact began when she was 7 years old and continued through her high school years. She could not remember each individual contact "because there's so many they run together." When A.S. was younger, Stewart would touch and fondle her vagina with his fingers. As A.S. grew older, Stewart also touched her buttocks and fondled her breasts. Stewart would have A.S. masturbate in front of him, and he would touch her while she was doing this. Stewart performed oral sex on A.S. and forced her to perform oral sex on him. When A.S. was 9 years old, Stewart inserted his penis partway into her vagina. During her teenage years, the sexual contacts between Stewart and A.S. occurred "every other day." Stewart told A.S. that she was sexy and that he wanted her to be his own. A.S. testified that Stewart treated her more as his "lover" than as his daughter. Stewart told A.S. that their sexual activities were "okay" and "normal" and that other fathers did these sorts of things with their daughters. If A.S. resisted, Stewart used guilt, coercion (e.g., refusing to allow her to spend time with friends), and other manipulation (e.g., shunning and refusing to speak to her) to get A.S. to have sex with him.
¶3 Stewart took photographs of A.S. in varying states of undress and in sexually provocative poses that he orchestrated. This began around age 15. Stewart had A.S. dress in different outfits, including a bikini, some lingerie, and a flight attendant costume. One set of photographs, approximately 90 in number, was taken in a hotel room in Salt Lake City on A.S.'s 18th birthday. This collection includes pictures of A.S. nude and close-ups of her vagina.
¶4 When A.S. turned 18, she joined the Army National Guard. A.S. initially reported the sexual molestation to her drill sergeant. She later met with Lieutenant Ed Lester, a detective with the Butte-Silver Bow Law Enforcement Department. She provided Lester with various details: that the abuse had been ongoing for the previous 11 years; that it consisted of fondling, masturbation, oral sex, digital penetration, and penile penetration; and that Stewart had taken nude and sexually provocative photographs of her. A.S. stated that the photographs could be found on computers at the family residence. In addition, she advised Lester that her parents had purchased some sex toys for her, which could be found in her bedroom at the residence.
¶5 Detective Lester obtained a search warrant for the Stewart residence to seize the computers and the sex toys. During the search, Lester spoke with J.S. (A.S.'s older brother), who thereafter came to the police station and gave a statement corroborating A.S.'s complaint. After seizing the computers, Lester obtained a warrant to search the internal data on the computers.
¶6 At the time A.S. reported the sexual abuse to law enforcement, Stewart and his wife, Angelina, were out of town. Detective Lester thus spoke with A.S. about making some "pretext phone calls" to Stewart's cell phone. Lester explained at trial that "[a] pretext call is a tool we use in investigation. Sometimes when we've been able to speak to the victim and sometimes witnesses, and sometimes we have the victim call the suspect and we record that phone call serendipitously [sic] so the suspect does not know he's being recorded and -- in hopes of obtaining more information." A.S. agreed to make the calls. Due to the Caller ID on Stewart's cell phone, Lester went to the Stewart residence and connected his listening and recording equipment to the landline there. Lester then had A.S. make the calls from that location, rather than from her cell phone. Lester did not obtain a search warrant to surreptitiously monitor and record the conversations between A.S. and Stewart.
¶7 The calls took place November 6, 2009. There were four in total, three from A.S. to Stewart and one from Stewart to A.S., which are summarized below. At the time, Stewart and Angelina were in transit (driving) from Wyoming, where Stewart had been searching for a job, back to their residence in Butte.
¶8 A.S. commenced the first call, which lasted 17 minutes and 30 seconds. Angelina answered the phone and then handed it to Stewart. At the outset, A.S. confronted Stewart about restrictions he had imposed on her personal life and about recent threats he had made to "rape" her and throw her out of the house. She then got into the sexual abuse and asserted that she was not going to be his "little play toy" anymore. Stewart was seemingly caught off guard. He stated that he had "no clue what brought all this up." He did not expressly acknowledge A.S.'s references to the molestation, but he did not refute them either. Many of his responses were vague and evasive-apparently, as A.S. opined, because Angelina was present. A.S. asked Stewart why he continued to demand "sexual favors" from her after having told her that he would stop. Stewart responded, "Okay, uh, that's a done deal." A.S. questioned his sincerity, however, and pressed on with the discussion of the abuse. Finally, after several minutes of this, Stewart, sounding quite frustrated, gave her an ultimatum: either "shut up and leave me alone" or "you're out of there." He stated that if A.S. wanted to stay at the house, she needed to "be reasonable, respectful, and mindful." When A.S. asked whether he would promise to quit "the sexual stuff," Stewart replied, "Uh, you and I will discuss that, uh, at a later date."
¶9 Stewart ended the first call because he was stopping at a gas station. He called A.S. back for the second call, which lasted roughly 26 minutes and 30 seconds. Angelina was outside the vehicle during the first several minutes of this call, but it seems that she and Stewart resumed their drive to Butte at some point during the call. At the outset, A.S. reiterated that she was "tired of the sexual favors" because "it's my body, it's not your body." Stewart stated, "Okay. Are you tired of it?" and A.S. replied, "Yes." Stewart then stated, "Okay, it's done. It's that simple." The conversation turned briefly to a discussion of how A.S. felt that Stewart was trying to "control" every facet of her life-personal and financial decisions in particular. A.S. then brought the conversation back to the abuse. She asked Stewart to explain why he had molested her. She stated that she did not enjoy it when he "went down on" her. She said she felt that he had taken something from her by forcing her to have sex with him. Stewart remained evasive and observed that A.S. was behaving oddly: "This is not you." He again threatened to throw her out of the house if she did not have "a smile and a different frame of mind" when he got home. A.S. persisted, however, and repeatedly asked Stewart to promise not to touch her anymore-to the point that Stewart became audibly upset and stated that if she pushed the matter any further, her life would be "going straight to hell." He did not deny the abuse; he simply stated that he had already given an answer to her question and did not want to discuss the matter any further. A.S., nevertheless, insisted that Stewart should reveal the abuse to Angelina, to which Stewart finally replied, "When I get home, everything that we talked about will be totally out in the open and talked about, and you're done, you're out of our lives."
¶10 It appears the second call either was dropped due to bad reception or that Stewart hung up. A.S. called him back and ended up leaving a short voicemail message. She apologized that the conversation had "gotten out of hand" and asked him to call her.
¶11 Sometime later, A.S. called Stewart again for the fourth and final pretext call, which lasted about 16 minutes. Noting that A.S. had said she "wanted everything out in the open," Stewart told her that he had been talking to Angelina and that "Mom knows that I, uh, went down on you the other day." A.S. asked to speak with Angelina. When Angelina came on the line, A.S. asked her what she thought about the things Stewart had done to A.S. In response, Angelina stated, "What have you done to him? You've done the same thing, over and over and over and over. . . . You flaunt it out in front of him." Angelina refused to accept that Stewart had forced A.S. to engage in sex with him. Angelina stated that Stewart had been merely "willing" to do so. Stewart then came back on the line. A.S. asked him whether he was afraid that she would tell someone. She implied that she might call the police. Stewart became angry with A.S.'s "threats" and eventually stated, "You can tell anybody you want to tell. I have no regrets with you. I have not done anything, uh, to you." A.S. pointed out that Stewart had "violated" her body, but he replied that she had touched him too. When A.S. stated that he had coerced her into having sex with him, Stewart asserted that she was "really screwed up." A.S. then asked, "When I was little, like seven, it was my idea to have fun with you?" Stewart responded, "Yeah." A.S. then brought up the photographs. Stewart admitted that he had taken nude pictures of her. But when A.S. accused him of molesting her and taking the photographs for his own pleasure, Stewart challenged her to "[p]rove it!"
Motion in Limine to Exclude the Photographs
¶12 The State charged Stewart with one count of incest, a felony, in violation of § 45-5-507, MCA. The State alleged that the sexual contact occurred as a continuing course of conduct between January 1998 and November 2009. The State noted that it would be seeking a mandatory minimum sentence based on the age difference between Stewart and A.S. See § 45-5-507(4), (5), MCA.
¶13 The prosecution indicated before trial that it intended to introduce the photographs of A.S., including those in which she was completely nude or in sexually explicit poses.
Stewart filed a motion in limine to exclude this evidence. He noted that his defense theory at trial would be "that his daughter is lying because she has a problem with Benny Stewart and her mother, Angie Stewart." Stewart argued that the photographs were irrelevant because there was no evidence of sexual contact when the photos were taken. Alternatively, he argued that even if relevant, the photographs should be excluded because "the prejudicial effect of these photos outweighs any probative value that they might have." The District Court denied the motion. The court's reasoning will be discussed under Issue 2 below.
¶14 The case proceeded to trial, at which time A.S. testified about the years of sexual abuse she had endured from age 7 until she was nearly 19. She stated that Stewart had fondled her vagina "[a]s many times as I can count," had performed oral sex on her about five times, had forced her to perform oral sex on him about two times (she refused to do so on other occasions), and had inserted the head of his penis into her vagina one time. A.S. testified that the sexual contact with Stewart became a "normal part" of her life. As part of her nightly routine, Stewart would have A.S. come into his bedroom and, while Angelina slept next to him, he would (as A.S. testified) "stick his fingers in my vagina before I went to bed so he can masturbate before he went to bed."
¶15 J.S. (A.S.'s brother) also testified at trial. He described Stewart's relationship with A.S. as "a mix between a lover and a father." He stated that Stewart had told him fantasies about "[h]ow he would like to romance [A.S.], how he would like to, given different circumstances, how he would like to bang her, [and] how . . . he loved it when she was nude." J.S. testified that it was common for Stewart and A.S. to lie together on family movie nights and that it appeared (from what J.S. could see) that Stewart often massaged A.S.'s breasts and crotch. J.S. stated that Stewart had shown him photographs of A.S. topless or nude, as well as a photo of A.S. performing oral sex on Stewart when she was 13 or 14 years old. Stewart told J.S. that this was "a family thing" and "not a thing to be ashamed of" because a lot of families do it, but that J.S. nevertheless should "[k]eep your mouth shut . . . and just keep it in between all of us."
¶16 Angelina testified. She stated that she had suspected "something was going on" between Stewart and A.S. through the years, but when she questioned them about it, they denied it. Angelina acknowledged that at night, before going to bed, A.S. would come into the bedroom and give her parents a hug and then lie next to Stewart, who generally slept naked. When asked whether she did anything to protect A.S. in these situations, Angelina stated: "I would put my hands on his private, his -- his penis. Sometimes it's soft, sometimes it's halfway hard." In regard to the pretext telephone calls, Angelina stated that Stewart had admitted to her (between the second and fourth calls) that "he went down on [A.S.]," which Angelina took to mean "[w]ent down on her private." Angelina testified that upon learning of this, she felt angry at both Stewart and A.S. She stated that she could now understand why A.S. "was mad all the time."
¶17 Agent Jimmy Weg with the Montana Division of Criminal Investigation testified regarding his examination of the computers seized from Stewart's residence. In addition to the photographs he found, Weg discussed the Internet browsing history, which included sites such as "Daddy's Whore.com" and "FirstDaddysLesson.com -- Tricky dads seduces their trusting daughters." Weg acknowledged, however, that he could not identify who was operating the computer at the times these sites were accessed.
¶18 Stewart testified in his defense. He stated that he never had sexual contact with A.S. He asserted that A.S. had been a "difficult daughter." He theorized that A.S. had fabricated the allegations out of "extreme anger" toward him, Angelina, and J.S. Stewart posited that A.S. was upset with him for "my refusal to repair her car or produce the funds to repair her car, along with the date canceling, then the -- for those reasons. It was not unusual for [A.S.] to fly into me and just say all kinds of things that didn't make sense to anybody." Stewart denied that he had visited the incest websites. He theorized that Angelina, J.S., or A.S. must have done so out of their own "fascination with father and daughter sex." Stewart characterized the photographs of A.S. as "family photos"- like photos a mother would take of a small child in a bathtub. These included photos of Stewart lifting up A.S.'s dress and looking at her buttocks, and of A.S. licking her own breasts. Stewart admitted that he had taken sexually graphic photos of A.S. on her 18th birthday, including close-ups of her vagina, but he claimed that he did so at her request and to please her. He asserted that no incest had occurred. As for the pretext phone calls, Stewart testified that, in his opinion, he did not admit to any sexual contact with A.S. during those conversations. Although he had acknowledged "touching" A.S., Stewart stated that he did not use the word "touch" to mean "sex." Stewart likewise testified that when he told Angelina that he "went down on" A.S., he did not mean oral sex. Instead, he was referring to an incident when he and A.S. were on a trip to Alaska and she apparently had a bad reaction from drinking too much coffee. According to Stewart, A.S. "went into a type of mental state or, I guess you would say, a type of seizure or fit," and he used the term "went down on [A.S.]" to describe this incident to Angelina.
¶19 Without objection, the State played the recordings of the pretext telephone calls to the jury. The parties thereafter argued differing interpretations of the conversations. In the prosecutor's view, Stewart implicitly admitted the crime: "There's a complete lack of denial when she's pressing him over and over about the sexual favors and 'you touched my body.' And think about the lack of surprise. There is no shock in his voice that he's being accused of touching his daughter. That is completely absent from these phone calls." Stewart, conversely, emphasized that he did make denials of A.S.'s allegations:
The State relies upon these . . . recorded telephone conversations . . . as implicit admissions. Even in the . . . recordings that they played, there were denials by Benny Stewart. "I haven't touched you. I haven't violated you.
I haven't done this, that or whatever." You can listen to the recordings, you can assess whether those are implicit admissions or not. They contend that he did not deny that these things happened. He expressly denied them toward the end. "I didn't do anything. I didn't violate you. You touched me, I touched you." Of course they ...