Submitted on Briefs: May 23, 2018
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
Appellant: Chad Wright, Appellate Defender, Kristina Neal,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana
Gallagher, Lewis and Clark County Attorney, Melissa Broch,
Deputy County Attorney, Helena, Montana
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.
AND FACTUAL BACKGROUND
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.
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
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.
Issue One: Whether the District Court abused its
discretion when it admittedtestimony about