Submitted on Briefs: March 8, 2017.
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DC 13-807
Honorable Gregory R. Todd, Presiding Judge.
Appellant: Chad Wright, Chief Appellant Defender, Haley
Connell Jackson, Assistant Appellate Defender, Helena,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana, Scott
Twito, Yellowstone County Attorney, Christopher Morris, Mary
Leffers Barry, Deputy County Attorneys, Billings, Montana.
Michael Stutzman appeals his conviction of sexual assault
against R.W., the eight-year-old daughter of Stutzman's
former girlfriend, Angela. The jury acquitted Stutzman of a
separate charge against K.W., R.W.'s twin sister. The
court later denied Stutzman's motion for a new trial and
sentenced him to prison.
We address the following issues on appeal:
1. Whether the prosecutor violated Stutzman's right to a
fair trial by telling the jury in closing argument that, in
order to find Stutzman not guilty, it would have to conclude
that R.W. and K.W. had lied during their testimony;
2. Whether the District Court committed plain error when it
failed to give a specific unanimity instruction to the jury
on the sexual assault charge after R.W. testified to two
alleged sexual assaults; and
3. Whether the District Court erred in not disclosing to the
defense information from the medical and counseling records
that it reviewed in camera.
AND FACTUAL BACKGROUND
Stutzman began living with Angela, R.W., and K.W. in May
2013. Shortly after he moved in with them, R.W. and K.W. both
disclosed to their mother and their school counselor, Tara
Sylvester, that Stutzman had inappropriately touched them.
The police arrested Stutzman, and the State charged him with
felony sexual assault against R.W. and felony sexual
intercourse without consent against K.W.
R.W. testified at trial that Stutzman had touched her
inappropriately on two occasions. The first incident occurred
while R.W. was sitting on Stutzman's lap at home. She
stated that Stutzman touched her "in the wrong places,
" which she described as her "private areas."
R.W. told her mother that Stutzman had touched the inside of
her thigh, which made her feel "weird." Angela
addressed the matter with Stutzman, who was apologetic but
denied that anything inappropriate occurred.
The second incident occurred in a tent in the family's
backyard over Memorial Day weekend. R.W. had invited several
friends for a sleepover, and Stutzman volunteered to sleep in
the tent with the children to supervise them. R.W. claimed
that during the night Stutzman "put his hands in [her]
pants and started rubbing [her] in the wrong place." She
explained that Stutzman had touched her "private area,
" her "cover-up area, " or where she goes
"pee." K.W. testified that, sometime during the
same weekend, Stutzman had penetrated her vagina with his