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State v. Weik

Supreme Court of Montana

September 4, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
DAVID LYNN WEIK, Defendant and Appellant.

          Submitted on Briefs: August 1, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 15-157 Honorable John W. Larson, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

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

          Kirsten H. Pabst, Missoula County Attorney, Suzy Boylan, Deputy County Attorney, Missoula, Montana

          LAURIE MCKINNON JUSTICE

         ¶1 A jury convicted David Lynn Weik of stalking Thresa Goldberg. The Fourth Judicial District Court, Missoula County, sentenced Weik to five years commitment in the Montana State Prison with two years suspended and $42, 798.80 in restitution. Weik appeals, raising two issues:

1. Did Weik's trial violate his right to confrontation because he could not see Goldberg during her testimony?
2. Was the restitution amount written in the District Court's judgment incorrect? We affirm but instruct the District Court to correct its written judgment regarding the restitution amount.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 Goldberg and Weik met in 1982, when Goldberg was approximately sixteen years old and Weik was approximately twenty years old. Goldberg and Weik had what Goldberg described as a short, teenage romance. In the following decades, Goldberg and Weik kept in intermittent contact. In 2011, Weik and Goldberg, then a divorced mother of three adult children, reconnected and developed a romantic relationship again. Goldberg ended the romantic aspect of their relationship, but the two remained friendly and talked about moving to Montana and starting a horse therapy business together.

         ¶3 In 2012, Goldberg moved to Montana, began working, and met Frank Broad, whom she began dating. Weik also moved to Montana, and Weik and Goldberg leased a house together beginning in October 2012. In December 2013, Goldberg moved out of the house she shared with Weik and into Broad's house. Goldberg moved because Weik was moody, he still seemed to be interested in having a romantic relationship with her, and she noticed he was removing her personal belongings, including hair from her hairbrush. Goldberg also noticed her passport was missing when she moved out.

         ¶4 After moving, Goldberg attempted to cut off contact with Weik, but she felt as though Weik was watching and following her. Goldberg frequently saw Weik while she drove, at the grocery store, and at the post office. Goldberg petitioned the justice court for a temporary order of protection against Weik. In April 2014, the justice court issued a temporary order of protection prohibiting Weik from entering within 1500 feet of Goldberg, Goldberg and Broad's house, and Goldberg's sister's house. The order also prohibited Weik from communicating with Goldberg. The justice court later extended the length of the protective order, and the protective order eventually became permanent. Despite the protective order, Goldberg was uncomfortable when alone and fearful in public settings.

         ¶5 While the protective order was in place, Weik entered a restaurant where Goldberg and Broad were seated at a bar and sat down in a barstool directly next to Goldberg. Weik apparently noticed Goldberg and moved to a seat across the restaurant from Goldberg but continued to stare at her. Goldberg contacted the police and Weik was later convicted for misdemeanor violation of a protective order. As part of his sentence, Weik served probation and wore a GPS monitoring device.

         ¶6 In further violation of the protective order, Weik: (1) sent Goldberg a letter; (2) called her; (3) entered within 1500 feet of Goldberg at a grocery store; (4) entered within 1500 feet of Goldberg at a different store; (5) entered within 1500 feet of Goldberg's sister's house; and (6) entered within 1500 feet of Goldberg while she retrieved mail from her post office box at the post office. At the time, Goldberg held post office box number 16291. According to a post office employee, Weik inquired about renting post office box 16191, the box directly adjacent to Goldberg's. Box 16191 was unavailable, but Weik continued asking about its availability and eventually rented it. The letter Weik sent Goldberg was a copy of a civil lawsuit he filed against Goldberg, Goldberg's sister, and Broad in federal court. Goldberg hired an attorney and the federal court dismissed Weik's civil suit. Next, Weik filed a similar civil lawsuit against Goldberg, Goldberg's sister, and Broad in state district court. Goldberg hired a different attorney and the district court dismissed Weik's second civil suit.

         ¶7 As a result of Weik's protective order violations, the State charged Weik with felony stalking and the case proceeded to a jury trial in February 2016. At trial, Goldberg testified at length about her relationship with Weik during the approximately thirty-three years since they met. Before trial and at the beginning of trial, Weik complained he was unable to see Goldberg during her testimony because of the location of his seat at the defense table and the size and shape of the courtroom. The District Court suggested rearranging the furniture in the "cramped" courtroom to enhance Weik's sightline but was unable to satisfy Weik with an arrangement. The District Court attempted to change courtrooms but was unable to do so. Weik asked to sit at the table the State typically occupies because it is directly opposite the witness stand, but the State argued it needed that table because it contained a specific portal for accessing the computer network. Further, the State argued it would be detrimental to Goldberg to be very close to Weik while she testified. During a discussion between the parties and the District Court about the courtroom's configuration, the Bailiff interjected and explained the defense table in that courtroom is considered the safest place for defendants and the most convenient for security personnel. Alternatively, Weik asked if he could leave his seat during Goldberg's testimony and move around the courtroom to get a better view of her. The District Court refused to allow Weik to exchange tables with the State or move around the room.

         ¶8 At trial, the State presented evidence from a probationary search of Weik's storage unit. Weik's probation officer found photocopies of several of Goldberg's personal documents, including her passport, social security card, birth certificate, credit report, and an airplane ticket with her name on it. Weik's probation officer also found two bags of Goldberg's hair. Goldberg assisted in a subsequent search of Weik's storage unit and shed and recovered a large amount of her personal property, including: her purse, flowerpot, books, horse blankets, coffee cups, and clothing; her granddaughter's socks, clothing, tricycle, and stuffed animal; discarded packaging from her facial lotions; discarded wrapping paper and a wine bottle from her family's Christmas celebration in 2013; and her son's belt buckle. Additionally, Goldberg recovered photographs of herself and her vehicle and printed-out images of her professional website and social media page.

         ¶9 The State also presented evidence that, because of her fear of Weik, Goldberg purchased a home security system, slept with a gun, placed mace in her car and purse, placed bear spray at each of her home's doors, and sought therapy. Goldberg began taking medications for anxiety, depression, and insomnia. Additionally, Goldberg suffered headaches, heightened blood pressure, nightmares, stress, and stress-induced shingles, which necessitated hospitalization and a prolonged absence from work. Broad testified and described Goldberg's personality and lifestyle changing during this time-Goldberg became reclusive, distraught, nervous, and frightened. Broad described trying to surprise Goldberg by coming home early. Instead of the happy surprise he intended, Broad inadvertently scared Goldberg by entering the house unannounced. Goldberg met Broad in the hallway with a gun pointed at him. Goldberg vomited after realizing the intruder ...


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