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State v. Pierce

Supreme Court of Montana

November 29, 2016

STATE OF MONTANA, Plaintiff and Appellee,
v.
ROBERT PIERCE, Defendant and Appellant.

          Submitted on Briefs: September 21, 2016

         APPEAL FROM: District Court of the Third Judicial District, In and For the County of Anaconda-Deer Lodge, Cause No. DC-12-29 Honorable Brad Newman, Presiding Judge.

          For Appellant: Chad Wright, Chief Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana.

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

          Ben Krakowka, Anaconda-Deer Lodge County Attorney, Dan Guzynski, Mary E. Cochenour, Special Deputy County Attorneys, Helena, Montana.

          OPINION

          LAURIE MCKINNON JUSTICE.

         ¶1 Robert Pierce appeals from the order entered in the Third Judicial District Court, Anaconda-Deer Lodge County, denying his motions for discovery sanctions and for mistrial. Pierce was convicted by a jury of sexual intercourse without consent and sexual assault involving his step-granddaughter, M.R., who was age nine and eleven at the time of the offenses. We affirm.

         ¶2 Pierce presents the following issues for review:

         1. Whether the District Court abused its discretion when it denied Pierce's request for continuance.

         2. Whether the District Court abused its discretion when it denied Pierce's motion for mistrial.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 M.R.'s father died prior to her birth in 1998 and M.R. was raised by her mother Malissa (Mother). M.R.'s paternal grandmother (Grandmother) and Grandmother's husband (Pierce) assisted Mother with raising M.R and her siblings. M.R. frequently spent weekends and holidays with Pierce and Grandmother; camped together; hunted together; and did many family activities together.

         ¶4 On February 5, 2012, when M.R. was fourteen, Mother had a Super Bowl party that Grandmother and Pierce attended. Mother noticed that M.R. was distant and cross towards her. M.R. was on the phone with her boyfriend during the party and was told by her boyfriend that she was a "prude." The accusation prompted M.R. to respond to her boyfriend that she had been touched by Pierce. Following this disclosure, M.R.'s boyfriend insisted that M.R. tell her mother or, alternatively, that he would tell M.R.'s mother the next day. After everyone left the party, M.R. told Mother about Pierce's abuse.

         ¶5 M.R. disclosed to Mother that Pierce first touched her when she was in the third grade while M.R. was visiting at Grandmother's home. M.R. was alone playing video games when Pierce sat down next to her. Pierce unbuttoned M.R.'s pants, held her down with one hand, slipped his other hand down her pants, and put his fingers inside of her. When M.R. struggled, Pierce held her down and covered her mouth when she tried to scream for Grandmother. Pierce told M.R. not to tell anybody because he would get into a lot of trouble. M.R. described that "it hurt really bad" when Pierce touched her vagina, and she had trouble urinating later "because it burned so bad." M.R. could feel ...


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