Submitted on Briefs: January 18, 2017
FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DC 12-23
Honorable Randal I. Spaulding, Presiding Judge
Appellant Colin M. Stephens, Smith & Stephens, P.C,
Appellee Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana, Nancy
L. Rohde, Stillwater County Attorney, Columbus, Montana
Appellant Denis Aguado (Aguado), appeals his convictions of
Sexual Abuse of Children and Sexual Assault upon A.M., after
jury trials in the Twenty-Second Judicial District Court,
Stillwater County, arguing the court erred by not
substituting his defense counsel, incorrectly applying the
"Rape Shield" statute, improperly removing Juror
No. 5, and giving an incorrect unanimity instruction. We
affirm and address these issues:
1. Did the District Court err by not substituting
2. Did the District Court violate Aguado's
confrontation rights by excluding evidence pursuant to §
3. Did the District Court err by dismissing Juror No. 5
in the second trial?
4. Did the District Court err by not giving a more
specific unanimity instruction?
AND PROCEDURAL BACKGROUND
Aguado and his then-wife, Patricia Aguado (Patricia), lived
in Columbus, Montana. A.M., Patricia's granddaughter,
moved into Aguado and Patricia's home when she was young
due to her mother's inability to care for her. As such,
A.M. was raised by Patricia and Aguado and considered Aguado
to be a grandfather figure.
In June or early July, 2012, during a family vacation to
Montana from Kentucky, Patricia's children, Ashley Sexton
(Ashley) and Ricky Mills (Ricky) (A.M.'s aunt and uncle),
observed interactions between Aguado and A.M. that raised
suspicions regarding the relationship between them. As was
usual each summer, A.M. returned with Ashley to Kentucky to
spend time with her family there, including A.M.'s
brother, T.M., who was being raised by Ashley. During a drive
to Wal-Mart, Ashley asked A.M. "if there was anybody
that was trying to touch her or make her do things she
didn't want to do." A.M. told Ashley that Aguado
"had tried to force himself on her thrusting his hand
down her pants and threatened to kill Patricia and A.M. if
she told anyone." A.M. told Ashley about a "sex
contract" she had signed with Aguado as a means to get
Aguado to stop his sexual actions. She said the document was
hidden under her mattress at Aguado and Patricia's home
in Columbus. Ashley informed Ricky about A.M.'s
disclosure and the two of them proposed that A.M. record a
phone call between her and Aguado after A.M. informed them
that Aguado would talk about sex with her on the phone.
Ricky set up recording equipment on the phone and A.M. made a
call with Ashley present for support. The conversation became
sexually explicit, with Aguado asking A.M. if they were
"still on" for doing the "full fuck" and
the "Big Lick" when she returned to Montana, and
later asking A.M. if she was "ready for a full
fuck?", saying that she was "gonna love it,
baby." Aguado told A.M. that she "need[ed] to [have
sexual intercourse] as much as you can the first two
weeks" to alleviate any pain and said that he would
"take care o' ya" because he knew "how to
do it where it ain't gonna bother you that much."
A.M. was thirteen years old at the time of the phone call.
After the phone call, Ashley, Ricky, and another family
member drove to Montana to inform Patricia and attempt to
find the "sex contract" A.M. had described. Upon
arriving, Ricky found the document where A.M. said it would
be. The next day, Ricky advised Patricia of A.M.'s
allegations and played the recording of Aguado and A.M.'s
telephone conversation. Later that day, Ricky, Ashley, and
Patricia made an initial report to the Stillwater County
Sheriff's Department and, the following day, fully
reported the incident and turned over the recording and
"sex contract" to authorities. Aguado was arrested
that day and later charged with Sexual Abuse of Children and
Sexual Assault. ¶6 At the two trials, A.M. testified
that Aguado had showed her pornographic videos when she was
six years old and began touching her inappropriately about
the same time. A.M. testified that Aguado touched her private
parts "[p]retty much almost every day, " which
often occurred in the car or A.M.'s bedroom. A.M. also
testified to multiple instances of sexual assault, some
involving Aguado's use of force and A.M.'s active
resistance. A.M. testified the "sex contract"
stated she "had to go all the way and [do a] big
lick" with Aguado on a given day and that Aguado had her
sign it "[b]ecause he would always ask for something and
I would say 'I promise, ' when I really didn't
want to do it. And I would always lie when I'd say 'I
promise', to him, so he made me write it down."
The jury found Aguado guilty of Sexual Abuse of Children, but
hung on the charge of Sexual Assault. The State pursued a
second trial on the Sexual Assault charge, after which the
jury found Aguado guilty. Aguado appeals. Additional facts
are discussed as necessary.
A request to substitute counsel is within the sound
discretion of the district court, reviewed for abuse of
discretion. State v. Cheetham, 2016 MT 151, ¶
13, 384 Mont. 1, 373 P.3d 45 (citing State v.
Edwards, 2011 MT 210, ¶ 14, 361 Mont. 478, 260 P.3d
We review a district court's application of a statute for
correctness. State v. Colburn, 2016 MT 41,
¶ 6, 382 Mont. 223, 366 P.3d 258 (citing Beehler v.
E. Radiological Assocs., P.C., 2012 MT 260, ¶ 17,
367 Mont. 21, 289 P.3d 131).
The trial court has discretion to remove a juror and seat an
alternate juror whenever the facts show the juror's
ability to perform his duties is impaired. State v.
Grindheim, 2004 MT 311, ¶ 18, 323 Mont. 519, 101
P.3d 267 (citing State v. Pease, 222 Mont. 455, 470,
724 P.2d 153, 162-63 (1986)). The reviewing court will not
disturb the ruling unless the defendant shows bias or
prejudice. Grindheim, ¶ 18 (citing
Pease, 222 Mont. at 470-71, 724 P.2d at 163).
We review jury instructions to determine whether, as a whole,
they fully and fairly instruct the jury on the applicable
law. State v. Dunfee, 2005 MT 147, ¶ 20, 327
Mont. 335, 114 P.3d 217 (citing State v. Courville,
2002 MT 330, ¶ 15, 313 Mont. 218, 61 P.3d 749). A
district court has broad discretion when it instructs the
jury. State v. Hall, 2003 MT 253, ¶ 24, 317
Mont. 356, 77 P.3d 239 (citing Courville, ¶
15). To constitute reversible error, jury instructions must
prejudicially affect the defendant's substantial rights.
Courville, ¶ 15 (citing State v.
Goulet, 283 Mont. 38, 41, 938 P.2d 1330, 1332 (1997)).
1. Did the District Court err by not substituting