07/06/2017
DA 15-0394
Case Number: DA 15-0394
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 169
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHAEL ROBERT STUTZMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 13-807
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellant 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
Scott Twito, Yellowstone County Attorney, Christopher Morris, Mary
Leffers Barry, Deputy County Attorneys, Billings, Montana
Submitted on Briefs: March 8, 2017
Decided: July 6, 2017
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Michael Stutzman appeals his conviction of sexual assault against R.W., the eight-
year-old daughter of Stutzman’s former girlfriend, Angela. The jury acquitted Stutzman
of a separate charge against K.W., R.W.’s twin sister. The court later denied Stutzman’s
motion for a new trial and sentenced him to prison.
¶2 We address the following issues on appeal:
1. Whether the prosecutor violated Stutzman’s right to a fair trial by telling
the jury in closing argument that, in order to find Stutzman not guilty, it would
have to conclude that R.W. and K.W. had lied during their testimony;
2. Whether the District Court committed plain error when it failed to give a
specific unanimity instruction to the jury on the sexual assault charge after R.W.
testified to two alleged sexual assaults; and
3. Whether the District Court erred in not disclosing to the defense
information from the medical and counseling records that it reviewed in camera.
¶3 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Stutzman began living with Angela, R.W., and K.W. in May 2013. Shortly after
he moved in with them, R.W. and K.W. both disclosed to their mother and their school
counselor, Tara Sylvester, that Stutzman had inappropriately touched them. The police
arrested Stutzman, and the State charged him with felony sexual assault against R.W. and
felony sexual intercourse without consent against K.W.
¶5 R.W. testified at trial that Stutzman had touched her inappropriately on two
occasions. The first incident occurred while R.W. was sitting on Stutzman’s lap at home.
She stated that Stutzman touched her “in the wrong places,” which she described as her
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“private areas.” R.W. told her mother that Stutzman had touched the inside of her thigh,
which made her feel “weird.” Angela addressed the matter with Stutzman, who was
apologetic but denied that anything inappropriate occurred.
¶6 The second incident occurred in a tent in the family’s backyard over Memorial
Day weekend. R.W. had invited several friends for a sleepover, and Stutzman
volunteered to sleep in the tent with the children to supervise them. R.W. claimed that
during the night Stutzman “put his hands in [her] pants and started rubbing [her] in the
wrong place.” She explained that Stutzman had touched her “private area,” her “cover-
up area,” or where she goes “pee.” K.W. testified that, sometime during the same
weekend, Stutzman had penetrated her vagina with his finger while she was sleeping.
K.W. told R.W. the next morning what happened, and R.W. said they needed to tell their
mom.
¶7 After R.W. and K.W. told their mother about these incidents, Angela kicked
Stutzman out of the house. The children then spoke with Sylvester. Sylvester testified at
trial that the children had received counseling services prior to the May 2013 incidents
because they met the criteria for being “seriously emotionally disturbed.” R.W. suffered
from “ADHD and oppositional defiant behaviors,” and K.W. suffered from “ADHD and
anxiety disorder.” Based on her discussions with the children, Sylvester believed that
Stutzman had sexually abused them, and she contacted the police.
¶8 Shortly before trial, Stutzman sought a continuance in order to obtain additional
medical and counseling records concerning the girls. The court conducted an in camera
review of the children’s medical records from the Billings Clinic and of their counseling
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records from Altacare, Sylvester’s employer. The court concluded that the records
contained no exculpatory evidence of Stutzman’s behavior. It declined to disclose any of
the records, and trial proceeded as scheduled.
¶9 Stutzman’s theory at trial was that R.W. and K.W. had fabricated their allegations
in order to get him out of the house. During closing argument, defense counsel referred
to Angela’s testimony, stating, “‘If we get him out of here, we’re golden,’ that’s what
mom said. Those words just jump out at you, because they provide a motive for these
girls to tell the stories that they did.” He suggested that the girls did not understand the
repercussions of their alleged lies about Stutzman, stating that “part of the understanding
whether or not they have to tell the truth is an understanding of what happens if they
don’t. They know that they’ll get in trouble, but do they know the consequences of what
could happen to this person, to Mike? Do they truly understand that?” In the State’s
rebuttal argument, the prosecutor said, “A not guilty verdict means you don’t believe
[K.W.] and [R.W.]. It means you think they’re lying.” Stutzman objected, saying,
“That’s not what that means.” The court replied, “It’s closing argument.” The
prosecutor continued her argument without further comment on the point.
¶10 The court instructed the jury that it must unanimously “agree that the defendant is
either guilty or not guilty in order to reach a verdict.” It provided a definition of sexual
assault and listed the elements of sexual assault that the State was required to prove. It
did not instruct, however, that the jury had to agree unanimously on at least one specific
criminal act that Stutzman had committed in order to convict him of sexual assault.
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Stutzman neither objected to the court’s instructions nor offered a specific unanimity
instruction.
¶11 The jury found Stutzman not guilty of sexual intercourse without consent against
K.W. and found him guilty of sexual assault against R.W. Stutzman moved for a new
trial on the sexual assault conviction, arguing that the State’s comment during its rebuttal
closing argument was so improper and prejudicial that it violated his constitutional right
to a fair trial.
¶12 The court denied Stutzman’s motion for a new trial. It reasoned, “Once defense
counsel argued that the victims had a motive to lie and did not understand the
repercussions of their alleged lies, rebuttal by the State was not prejudicial in the
comments of the prosecutor. No error attaches when the prosecutor’s actions are
provoked by defense counsel.” The court reasoned that Stutzman provoked this comment
by referencing the motive of the victims to lie—to get Stutzman out of the house. The
court sentenced Stutzman to twenty-five years in prison with twenty years suspended and
required that he be designated as a Level 2 Sexual Offender.
STANDARDS OF REVIEW
¶13 We generally review a district court’s decision to grant or deny a motion for new
trial for an abuse of discretion. State v. Morse, 2015 MT 51, ¶ 18, 378 Mont. 249,
343 P.3d 1196. We likewise review a district court’s decision regarding jury instructions
for an abuse of discretion, so long as the instructions, as a whole, fully and fairly instruct
the jury on the law applicable to the case. State v. Dobrowski, 2016 MT 261, ¶ 6,
385 Mont. 179, 382 P.3d 490. When a defendant raises the plain error doctrine to request
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our review of issues that the defendant did not raise before the district court, our review is
discretionary. State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224. We
review a district court’s grant or denial of discovery for an abuse of discretion. State v.
Duffy, 2000 MT 186, ¶ 18, 300 Mont. 381, 6 P.3d 453.
DISCUSSION
¶14 1. Whether the prosecutor violated Stutzman’s right to a fair trial by telling the
jury in closing argument that, in order to find Stutzman not guilty, it would have to
conclude that R.W. and K.W. had lied during their testimony.
¶15 Stutzman asserts that the prosecutor’s argument “diluted the presumption of
innocence and shifted the burden of proof” to him. He argues that it constituted
prosecutorial misconduct and that it was highly prejudicial, entitling him to a new trial.
¶16 The Sixth Amendment of the United States Constitution and Article II, Section 24,
of the Montana Constitution guarantee criminal defendants the right to a fair trial. State
v. Hayden, 2008 MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091. To determine whether a
defendant is entitled to a new trial by reason of prosecutorial misconduct, we consider
“whether the prosecutor’s comments were improper” and whether they “prejudiced the
defendant’s right to a fair trial.” State v. Pierce, 2016 MT 308, ¶ 24, 385 Mont. 439,
384 P.3d 1042 (citing State v. Lindberg, 2008 MT 389, ¶ 25, 347 Mont. 76, 196 P.3d
1252).
¶17 The burden is on the defendant to show that the prosecutor’s improper comments
prejudiced his right to a fair trial. Lindberg, ¶ 25. In determining whether prejudice
occurred, we view the improper comments “in the context of the case in its entirety.”
Lindberg, ¶ 25. “We evaluate a prosecutor’s statements during closing argument in the
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context of the argument as a whole.” State v. Walton, 2014 MT 41, ¶ 13, 374 Mont. 38,
318 P.3d 1024; accord State v. Martin, 2001 MT 83, ¶ 68, 305 Mont. 123, 23 P.3d 216
(holding that a prosecutor’s improper comments were not prejudicial “in light of all the
surrounding circumstances, including the context in which the remarks were made”).
¶18 Stutzman argued in closing that R.W. and K.W. fabricated the allegations against
him as a way to get him out of their home, and he questioned the children’s ability to
understand the repercussions of lying. The prosecutor began her rebuttal argument by
discussing reasonable doubt and the State’s burden of proof. She proceeded to discuss
the evidence, responding to defense counsel’s arguments. She then stated that a not
guilty verdict would require the jury to believe that R.W. and K.W. were lying. After
Stutzman objected, she did not discuss this contention further. Instead, the prosecutor
reviewed the evidence and questioned how it would support Stutzman’s assertion that
K.W. and R.W. had a motive to lie, pointing to specific evidence that suggested the girls
did not lie on the witness stand.
¶19 Based on our review of the record, we conclude that Stutzman has failed to
“demonstrate, from the record,” that even if improper, the prosecution’s isolated remark
prejudiced him. State v. Sanchez, 2008 MT 27, ¶ 55, 341 Mont. 240, 177 P.3d 444. The
prosecutor’s closing argument and rebuttal argument centered on the evidence presented
at trial and how it proved Stutzman’s guilt. The prosecutor made the comment about the
girls’ lying in rebuttal, after Stutzman suggested that R.W. and K.W. had fabricated their
allegations. Viewing the prosecution’s comment “in light of all the surrounding
circumstances, including the context in which the remarks were made,” Martin, ¶ 68, we
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conclude that the District Court did not abuse its discretion in denying Stutzman’s motion
for a new trial on this ground. Stutzman has not met his burden of showing that the
prosecutor’s statement prejudiced his right to a fair trial. Lindberg, ¶ 25. We therefore
do not address whether the comments were improper on their face. See Pierce, ¶ 24.
¶20 2. Whether the District Court committed plain error when it failed to give a
specific unanimity instruction to the jury on the sexual assault charge after R.W. testified
to two alleged sexual assaults.
¶21 Stutzman argues that the District Court erred when it failed to instruct the jury that
it must agree unanimously that Stutzman committed a specific underlying criminal act in
order to convict him of sexual assault. He contends that the State presented two separate
incidents in which Stutzman allegedly sexually assaulted R.W.—one that occurred while
she was sitting on his lap, and another that occurred during the backyard campout.
Stutzman contends that although the jury unanimously found him guilty of sexual assault
against R.W., the jurors might not have unanimously concluded that the State proved at
least one of the two particular acts. This, in Stutzman’s view, creates uncertainty about
the unanimity of the jury’s verdict and warrants a new trial. Stutzman argues that we
should review the court’s failure to give a specific unanimity instruction for plain error.
¶22 A criminal defendant has a constitutional right to a unanimous jury verdict. State
v. Vernes, 2006 MT 32, ¶ 21, 331 Mont. 129, 130 P.3d 169. Unanimity “requires
substantial agreement as to the principal factual elements underlying a specific offense.”
Vernes, ¶ 21. When the State charges multiple criminal acts within one count, and when
“a genuine possibility exists that different jurors will conclude a defendant committed
disparate illegal acts subsumed under the single count,” the court must provide a specific
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unanimity instruction directing the jurors “to reach a unanimous verdict on at least one
specific criminal act before finding guilt for the multiple-act count.” State v. Harris,
2001 MT 231, ¶ 12, 306 Mont. 525, 36 P.3d 372, abrogated in part on other grounds by
Robinson v. State, 2010 MT 108, ¶ 12 n.1, 356 Mont. 282, 232 P.3d 403.
¶23 Because Stutzman did not object to the court’s jury instructions or offer a specific
unanimity instruction on the sexual assault charge, he did not preserve that issue for
appeal. We generally do not address issues raised for the first time on appeal. State v.
Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126. We may, however, “choose
to invoke the common law plain error doctrine where failing to review the claimed error
may result in a manifest miscarriage of justice, may leave unsettled the question of the
fundamental fairness of the trial or proceedings, or may compromise the integrity of the
judicial process.” Favel, ¶ 13. We invoke plain error review “sparingly, on a case-by-
case basis.” Favel, ¶ 23. When the circumstances of a case do not warrant application of
the plain error doctrine, we need not address the merits of the alleged error. See State v.
Lawrence, 2016 MT 346, ¶¶ 11-12, 386 Mont. 86, 385 P.3d 968; State v. Thorp,
2010 MT 92, ¶ 25, 356 Mont. 150, 231 P.3d 1096.
¶24 Trial on the charge that Stutzman sexually assaulted R.W. focused on the incident
that allegedly occurred in the tent. In both its opening and closing statements, the
defense referred only to the incident in the tent—not the touching alleged to have
occurred while R.W. sat on Stutzman’s lap—as the basis for the sexual assault charge. In
the State’s closing argument, the prosecutor stated, “[R.W.] told you, ‘He stuck his hands
in my pants and he rubbed my private’ . . . She called it her cover-up area.” It later
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stated, “[Stutzman] waited until [R.W.] was asleep, and then he stuck his hands down her
pants.” These were clear references to the incident in the tent. The prosecutor framed the
incident on Stutzman’s lap—in which R.W. alleged that he inappropriately touched her
over her clothes—as an opportunity to test the potential consequences of his actions.
When R.W. told her mom about this incident, Stutzman claimed it was an accident. The
prosecutor argued that, after Stutzman did not face any consequences for this action, he
“progressed” to inappropriately touching R.W. underneath her clothes in the tent. The
prosecutor’s comments about the incident on Stutzman’s lap were directed toward her
argument that his behavior escalated to ultimately assaulting R.W. in the tent.
¶25 The record therefore demonstrates that the parties considered the tent as the basis
for the sexual assault charge. Defense counsel’s failure to offer a specific unanimity
instruction undoubtedly reflects this understanding. The court did not plainly err when it
did not sua sponte give a specific unanimity instruction in light of the parties’
presentation of the case. The circumstances of this case thus do not warrant application
of the plain error doctrine. See Lawrence, ¶¶ 11-12; Thorpe, ¶ 25.
¶26 3. Whether the District Court erred in not disclosing to the defense information
from the medical and counseling records that it reviewed in camera.
¶27 After the District Court conducted an in camera review of the sealed documents
from the Billings Clinic and Altacare, it disclosed none of the documents to counsel for
the parties. Stutzman argues that this Court must review the records to ensure that the
District Court did not err in refusing to disclose these documents to the defense. If the
documents contain “favorable and material information” that the court failed to disclose,
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Stutzman argues that he should receive a new trial. He argues that any information that
could weaken R.W.’s, Angela’s, or Sylvester’s credibility as witnesses or any medical
documents that could support Stutzman’s defense that he did not sexually assault R.W.
would constitute “favorable and material information.”
¶28 A defendant has a right to discover exculpatory evidence. Duffy, ¶ 19.
Exculpatory evidence includes that which is favorable to the accused and material either
to guilt or to punishment. State v. Colvin, 2016 MT 129, ¶ 12, 383 Mont. 474, 372 P.3d
471; State v. Ellison, 2012 MT 50, ¶¶ 15-16, 364 Mont. 276, 272 P.3d 646. We do not
focus our inquiry “on whether the evidence is admissible or inadmissible, but rather
whether the evidence is favorable to the defense and could have affected the outcome of
the proceedings.” State v. Weisbarth, 2016 MT 214, ¶ 24, 384 Mont. 424, 378 P.3d 1195.
“Favorable” evidence includes evidence that has the “potential to lead directly to
admissible exculpatory evidence.” Weisbarth, ¶ 24.
¶29 When a defendant requests a crime victim’s confidential records, the district court
has a “duty to conduct an in camera review to ascertain whether there [is] any
exculpatory evidence in the files.” State v. Johnston, 2014 MT 329, ¶ 9, 377 Mont. 291,
339 P.3d 829. If the trial court finds records that constitute potentially exculpatory
evidence, “the district court must balance the defendant’s need for exculpatory evidence
against the privacy interest of the victim.” Duffy, ¶ 21. “If confidential information is
not exculpatory or necessary for the preparation of the defense, defense counsel’s right to
review the information is outweighed by the victim’s right to confidentiality.”
Duffy, ¶ 21. Ultimately, to mandate reversal of the conviction, a defendant “must prove
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‘that there is a reasonable probability that had the information been provided, the result
would have been different or[,] stated another way, is it a “verdict worthy of
confidence”?’” State v. Ellenburg, 2000 MT 232, ¶ 47, 301 Mont. 289, 8 P.3d 801
(quoting Kills on Top v. State, 273 Mont. 32, 42, 901 P.2d 1368, 1374 (1995)).
¶30 We have conducted a complete review of the Billings Clinic and Altacare records
that the District Court reviewed in camera. The Billings Clinic records contain medical
documents for R.W. and K.W. and include reports from two forensic examinations
conducted on June 12, 2013. Both reports were included in R.W.’s medical file and both
are identified as a report of her examination. The first report describes an “[a]bnormal
vaginal exam . . . compatible with blunt force trauma.” The second report describes a
“[n]ormal vaginal examination” which “neither denies nor confirms sexual abuse.” The
reports make it apparent—particularly from the patients’ descriptions of the alleged
incidents of sexual assault—that the report of the abnormal examination pertains to R.W.
and that the report of the normal examination pertains to K.W. Nonetheless, due to the
fact that both reports were in R.W.’s file and under her name, the District Court should
have disclosed these records to the defense. One of the reports was potentially
exculpatory, and disclosure would have afforded Stutzman the opportunity to question
the examining physician and to clarify the discrepancy.
¶31 Yet even if Stutzman had been able to use the reports at trial to argue that the
report describing a “[n]ormal vaginal examination” pertained to R.W., the absence of
physical evidence of penetration “neither denies nor confirms sexual abuse,” as noted in
the report. See State v. McAlister, 2016 MT 14, ¶¶ 4, 13, 382 Mont. 129, 365 P.3d 1062
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(holding that the evidence to convict the Defendant of sexual intercourse without consent
was sufficient despite medical examination results showing no physical evidence of
penetration). Taken together, particularly in light of the abnormal findings on the report
that correlates most likely with R.W., we are unable to conclude that the reports
contained exculpatory information material to Stutzman’s guilt or innocence. Instead, we
conclude that their disclosure would not have “affected the outcome of the proceedings.”
Weisbarth, ¶ 24.
¶32 The Altacare documents include notes and evaluations from counselors, including
Sylvester, regarding R.W.’s and K.W.’s mental and behavioral health. Some of these
documents describe R.W.’s recounting of Stutzman’s sexual assault in the tent. Another
document—a “Psycho Educational Group Note” completed by two counselors,
apparently including Sylvester—states that R.W. “appeared to not be too fond of her
mom’s new boyfriend,” a probable reference to Stutzman.
¶33 Assuming that one or more of the Altacare notes may have had relevance and
potential utility to the defense, we are confident that disclosure would not have “affected
the outcome of the proceedings.” Weisbarth, ¶ 24. R.W. testified that Stutzman sexually
assaulted her in the tent. R.W. told her mother about the incident, her mother kicked
Stutzman out of the house as a result, R.W. spoke with Sylvester about the incident
shortly thereafter, and R.W. seemed, in Sylvester’s words, “just not herself, very quiet,
withdrawn.” Angela stated during cross-examination that, upon R.W. and K.W. telling
her about Stutzman’s alleged abuse, she initially thought they “might have made this up.”
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¶34 The Altacare documents containing R.W.’s descriptions of the incident in the tent,
while relevant to the issue at trial, only verify R.W.’s testimony. As such, they would not
have constituted “favorable” evidence for Stutzman and were therefore not exculpatory.
Weisbarth, ¶ 24.
¶35 The Psycho Educational Group Note stating that R.W. was not “too fond” of
Stutzman constitutes potentially favorable evidence for the defense, and it too should
have been disclosed. Stutzman could have used this note to cross-examine R.W. on her
sentiments toward him. The District Court abused its discretion by failing to produce this
document. Duffy, ¶ 18. But again we conclude that the error is not ground for reversal
because it would not have affected the outcome of the case. Stutzman had ample
opportunities to probe this topic at trial. Defense counsel solicited testimony from
Angela that she initially believed her children might have fabricated the allegations
against Stutzman, and the defense argued in closing that the children made up the
allegations in order to get Stutzman out of the house. That R.W. was not “too fond” of
Stutzman would not have substantially strengthened the evidence Stutzman used to argue
about R.W.’s motive to lie. This single comment to her counselors did not prove
fabrication or show that R.W. was hostile or vindictive. On the strength of the record as a
whole, disclosure of the Altacare documents would not have “affected the outcome of the
proceedings.” Weisbarth, ¶ 24.
¶36 The verdict against Stutzman is a “verdict worthy of confidence,” Ellenburg, ¶ 47,
and the District Court’s failure to disclose these records does not warrant a new trial.
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CONCLUSION
¶37 The prosecution’s statement to the jury during its rebuttal argument did not violate
Stutzman’s right to a fair trial. The District Court did not err in failing to give a specific
unanimity instruction on the sexual assault charge absent a request by the defense.
Finally, the District Court’s refusal to disclose medical records from the Billings Clinic or
counseling records from Altacare did not deprive Stutzman of a fair trial. The judgment
is affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE
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