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State v. Clemans

Supreme Court of Montana

July 31, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
MICHAEL LEE CLEMANS, Defendant and Appellant.

          Submitted on Briefs: May 23, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DC 15-262 Honorable Kathy Seeley, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Kristina Neal, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana

          OPINION

          BETH BAKER JUSTICE

         ¶1 A jury found Michael Lee Clemans guilty of one count of sexual intercourse without consent in violation of § 45-5-503(1), MCA. Clemans argues on appeal that the District Court deprived him of a fair trial when it allowed the victim's mother to provide testimony about Clemans's prior assault against the victim's brother and when it sent the victim's forensic interview video into the jury room during deliberations. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 In July 2014, sixteen-year-old A.P. confided in her mother, Hester, that her step- father, Clemans, had touched her inappropriately over the course of three nights when she was younger. A.P. made the disclosure as she and Hester drove in their car to the home they shared with Clemans; Clemans followed them in a separate car. A.P. begged Hester not to tell Clemans she had disclosed the abuse, and Hester agreed; they returned home with Clemans and did not speak to him about the disclosure. A.P. stayed in the home that night, then left to stay at a friend's house. Hester contacted law enforcement about A.P.'s disclosure soon after, when she reviewed text messages that A.P. and a friend previously sent one another regarding the abuse. Hester then also left the home with her youngest child and went to stay with a friend. In late July, a trained forensic interviewer interviewed A.P. about the sexual assaults and made a video recording of the interview. During the interview, A.P. described digital penetration by Clemans that had taken place on three separate nights approximately four years prior to her disclosure. The State charged Clemans with three counts of sexual intercourse without consent, one for each night.

         ¶3 The First Judicial District Court conducted a jury trial on the charges in August 2016. Both A.P. and Hester testified for the State. Clemans testified for the defense. The jury also viewed a video recording of A.P.'s July 2014 forensic interview. The jury found Clemans not guilty of Count I, undecided as to Count II, and guilty of Count III. The District Court sentenced Clemans to the Montana State Prison for one hundred years, with ninety-two years suspended.

         STANDARDS OF REVIEW

         ¶4 We review evidentiary rulings for abuse of discretion. State v. Flowers, 2018 MT 96, ¶ 11, 391 Mont. 237, 416 P.3d 180. We discretionarily may review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection was made, under plain error review. State v. Lackman, 2017 MT 127, ¶ 9, 387 Mont. 459, 395 P.3d 477. We review ineffective assistance of counsel claims de novo. Flowers, ¶ 13.

         DISCUSSION

         ¶5 Issue One: Whether the District Court abused its discretion when it admittedtestimony about ...


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