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State v. Hayes

Supreme Court of Montana

October 1, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
GARY S. HAYES, Defendant and Appellant.

          Submitted on Briefs: June 5, 2019

          APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DC-2016-13 Honorable Luke Berger, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Steve Haddon, Jefferson County Attorney, Boulder, Montana

          OPINION

          Laurie McKinnon Justice

         ¶1 On February 5, 2017, a jury in the Fifth Judicial District Court, Jefferson County, found Gary S. Hayes (Hayes) guilty of incest, a felony in violation of § 45-5-507, MCA. Hayes appeals his conviction, raising three issues. We find the following issue dispositive:

Did the District Court abuse its discretion by allowing the jury to hear during jury deliberations portions of a victim's taped forensic interview, after those portions of the interview had been played to the jury during trial?

         ¶2 We reverse and remand for further proceedings consistent with this Opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 The State charged Hayes with incest on March 1, 2016, based upon incidents which occurred between November 2015 and February 2016. On November 26, 2015, Hayes's soon-to-be ex-wife Karlina Robbennolt (Karlina) separated from him and moved out of the family home. Hayes and Karlina's two children remained with Hayes to maintain their schooling routine, spending time with Karlina on the weekends. In the middle of December 2015, Karlina moved the children to her home after being informed by her oldest daughter that Hayes was leaving each night around seven or eight and coming home inebriated at two or three in the morning. On January 31, 2016, Karlina called the Jefferson County Sheriff's Office to file a complaint that her ten-year old daughter, S.H., had told her Hayes had sexually touched her while taking showers with her.

         ¶4 Paula Samms (Samms) the director of Lewis and Clark County Child Advocacy Center, conducted a forensic interview of S.H. on February 8, 2016. During the interview with Samms, S.H. described touching Hayes's penis with her hand and what the penis felt like. S.H. also described Hayes masturbating and ejaculating; that Hayes had "oil" in his penis; and that Hayes made a "deal" with her that she would not tell anybody about what occurred when they showered together.

         ¶5 Jefferson County Deputy Sheriff Tom Grimsrud interviewed Hayes on February 11, 2016. Deputy Grimsrud asked Hayes if he took showers with S.H. Hayes stated he did and that he showered with S.H. in order to wash her thoroughly and to examine her for eczema. Hayes stated he washed the victim's hair, because she did not wash it thoroughly, but that he did not wash S.H.'s body. When Deputy Grimsrud asked Hayes whether he had ever gotten an erection while he was in the shower with S.H., he replied he had. In response to getting an erection, Hayes stated that he would immediately excuse himself from the shower.

         ¶6 The trial in this matter lasted two days. On the first day of trial, S.H. testified regarding what she told Samms in her forensic interview. The State questioned S.H. about specific areas of her interview with Samms. When asked about touching Hayes's penis, S.H. claimed she could not remember what she told Samms. S.H. then denied both touching Hayes's penis and telling Samms that she had touched Hayes's penis. When asked about the "oil," S.H. described Hayes ejaculating, but then claimed she forgot what happened. When questioned about Hayes's "deal" with her, S.H. testified she could not remember the "deal" or telling Samms about the "deal."

         ¶7 On the morning of the second day of trial, the State addressed the District Court, proposing that the entire forensic interview video be submitted into evidence so that he could ...


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