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State v. Pinner

Supreme Court of Montana

March 5, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
CHARLES HENRY PINNER, Defendant and Appellant.

          Submitted on Briefs: February 13, 2019

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

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

          Joel M. Thompson, Daniel M. Guzynski, Kenneth Varns, Special Deputy County Attorneys, Helena, Montana

          OPINION

          JIM RICE JUSTICE

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 A jury convicted Charles Henry Pinner of committing Sexual Intercourse Without Consent, a felony in violation of § 45-5-503, MCA, and Aggravated Kidnapping, a felony in violation of § 45-5-303, MCA. Pinner was tried in the Fifteenth Judicial District Court, Roosevelt County, and now appeals his conviction. We affirm the jury's verdict but reverse and remand to correct the costs and technology fee imposed in Pinner's sentence.

         ¶3 In the spring of 2015, a 68-year-old woman, Patsy Shepherd (Patsy) and her two sisters, Betty and Lois, were traveling westbound on an Amtrak train across Montana. The three women were from North Carolina and took the trip wanting to see the western United States. Beginning in Chicago, the three sisters became acquainted with Pinner, who was the Amtrak attendant assigned to their train cars. On the afternoon of April 19, 2015, Patsy was in her sleeper room, sitting in a chair by the window, when Pinner entered, locked the door, and attacked her. Patsy testified that Pinner, "started grabbing at me, licking at me, kissing on me. Then he grabbed me by my shirt, here and started pulling at me. And pulled me down into the floor . . . . Then he pulled my pants down around my ankles. He was on top of me. Then he started doing terrible things." Pinner performed oral sex on Patsy and penetrated her vagina with his fingers and penis. Pinner ejaculated on Patsy, got up off the floor, and before leaving the room said, "now I've banged all three of you blondes."

         ¶4 Following the assault, Patsy took a shower and noticed that she was bleeding from her vagina. She also described pain and bruising on her legs, arms, breasts, and back. A short time later, the three sisters got off the train in Glasgow, Montana, for a planned three-day visit with Lois' son. During the visit in Glasgow, Patsy was still bleeding and experiencing pain. She withdrew from the group and wanted to go home but did not tell anyone about the rape because she "didn't want to mess up Lois and Betty's trip."

         ¶5 The sisters left Glasgow and rode the train to Seattle, where Patsy was separated from her two sisters because of a problem with her ticket. After boarding the train alone, Patsy became distressed and decided to tell the police about the rape. Patsy got off the train in Kelso, Washington, where she was escorted by the police to a local hospital for a sexual assault examination by a certified SANE nurse. The examination revealed injuries consistent with Patsy's account of the assault.

         ¶6 In December 2015, Pinner was charged by Information in Roosevelt County, Montana, with Sexual Intercourse Without Consent, § 45-5-503, MCA, and Aggravated Kidnapping, § 45-5-303, MCA. After a five-day jury trial in September 2016, Pinner was convicted of both felony counts.

         ¶7 Pinner is a black male and argues the prosecutor "employed dog-whistle racism" throughout the trial, which worked to deny Pinner "due process and equal protection of laws" and should result in a new trial. He contends the State "exploited racist concepts and frames to brand Pinner as an animalistic, simple-minded brute, and to brand the complaining witness and her sisters as southern ladies to bolster their credibility" and secure a conviction.

         ¶8 No objections on these grounds were made at trial. Generally, this Court does not review issues of prosecutorial misconduct relating to statements that were not objected to during trial. State v. Lawrence, 2016 MT 346, ¶ 6, 386 Mont. 86, 385 P.3d 968 (citations omitted). However, we may discretionarily review such issues under the plain error doctrine. State v. Lackman, 2017 MT 127');">2017 MT 127, ¶ 9, 387 Mont. 459, 395 P.3d 477. The purpose of this doctrine is to correct error not objected to during trial that affects the "fairness, integrity, and public reputation of judicial proceedings." Lawrence, ¶ 9 (citation omitted). We conduct a plain error review only in situations that "implicate a defendant's fundamental constitutional rights" and "when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process." State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506. We review allegations of prosecutorial error de novo. State v. Dobrowski, 2016 MT 261, ¶ 8, 385 Mont. 179, 382 P.3d 490.

         ¶9 The Court takes very seriously Pinner's assertions that racial prejudice was invoked by the prosecutor to inflame the jury and secure a conviction. Given the lack of objection to any such conduct during the trial, our review is confined to plain error review, requiring Pinner to carry the burden of proving the prosecutor's statements implicated his fundamental constitutional rights, and that this Court's failure to review the alleged error would result in a miscarriage of justice or undermine the fairness or integrity of the judicial process. State v. Gunderson, 2010 MT 166, ¶ 100, 357 Mont. 142, 237 P.3d 74. "[A] mere assertion that constitutional rights are ...


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