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State v. Aguado

Supreme Court of Montana

March 7, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
DENIS AGUADO, Defendant and Appellant.

          Submitted on Briefs: January 18, 2017

         APPEAL 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

          For Appellant Colin M. Stephens, Smith & Stephens, P.C, Missoula, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Nancy L. Rohde, Stillwater County Attorney, Columbus, Montana

          Jim Rice Justice

         ¶1 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 Aguado's counsel?
2. Did the District Court violate Aguado's confrontation rights by excluding evidence pursuant to § 45-5-511(2), MCA?
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?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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."

         ¶7 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.

         STANDARDS OF REVIEW

         ¶8 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 396).

         ¶9 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).

         ¶10 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).

         ¶11 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)).

         DISCUSSION

         ¶12 1. Did the District Court err by not substituting ...


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