12/28/2023
DA 21-0580
Case Number: DA 21-0580
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 255N
IN THE MATTER OF:
C.M.,
A Youth.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDJ-2021-5
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Tammy A. Hinderman, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Katie Jerstad,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: August 23, 2023
Decided: December 28, 2023
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion, 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 Appellant C.M., a youth, appeals a September 29, 2021 dispositional order of the
Montana First Judicial District Court, Lewis and Clark County, committing C.M. to the
custody of the Department of Corrections for placement in a state youth correctional
facility until age 18, with a recommendation for placement at Pine Hills Correctional
Facility. C.M. argues he was denied the right to effective assistance of counsel when
C.M.’s attorney failed to make objections to the admission of various hearsay statements.
We affirm.
¶3 On March 3, 2021, the State charged C.M. by petition with sex offenses against
three of his high school classmates. The State alleged that, if committed by an adult, C.M.
would have committed: (1) Sexual assault and sexual intercourse without consent against
E.E., both offenses alleged to have occurred at E.E.’s grandmother’s home (Counts I and
V); (2) Sexual Assault against S.R. occurring on the school stairs (Count II); (3) Sexual
intercourse without consent, or alternatively, attempted sexual intercourse without consent
against A.C. on a school bus (Counts III and IV). C.M. denied all allegations.
¶4 An adjudication hearing was held before a jury on August 9-11, 2021. On the
morning of the first day of trial, the State moved to endorse a foundational witness to
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establish the admissibility of the School District’s bus records under the business records
exception to the hearsay rule. Defense counsel objected, arguing the motion was untimely
and provided inadequate time to review the records or interview the new witness prior to
trial. The District Court ruled the State could not call the witness during its case-in-chief.
¶5 S.R. testified that C.M. grabbed her buttocks and breasts in their high school’s
stairwell in 2019. School Resource Officer Sean Schoenfelder (“Schoenfelder”) testified
that in January of 2020, S.R. told him C.M. had grabbed her buttocks and breasts as they
walked up the school stairway together at the start of the school year. Schoenfelder testified
that S.R. had provided him with names of other people who “might be involved,” including
E.E. Defense counsel made no objection to any of this testimony.
¶6 E.E. testified that she hung out with C.M. at school a bit and would sometimes give
C.M. rides to school because C.M. lived near E.E.’s grandmother’s house, where E.E.
would sometimes stay. E.E. testified that on September 17, 2019, she drove C.M. to her
grandmother’s house, where C.M. sexually assaulted her several times, first on the couch
in the living room and then in the guest bedroom.
¶7 At trial, forensic interviewer Paula Samms (“Samms”) testified about the interview
she conducted with E.E. Samms testified about E.E.’s description of the incident during
the forensic interview along with her demeanor. Samms’ testimony included many details
which E.E. had already relayed. Defense counsel made no objection to this testimony.
¶8 Schoenfelder testified that, in the course of his investigation, he had gone to E.E.’s
grandmother’s home. Schoenfelder testified to the home’s configuration and furnishings
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which were largely consistent with details E.E. had reported in her forensic interview and
previous testimony.
¶9 E.E.’s mother testified to the substantial changes in E.E.’s behavior, which began in
the fall of 2019. E.E.’s mother testified that E.E.’s demeanor on the day of the incident
was “panicky” and “disoriented.” E.E.’s mother recounted in detail a conversation with
E.E. in January of 2020 in which E.E. told her that she had been raped. Defense counsel
made no objection to this testimony.
¶10 Schoenfelder testified that in January 2020, A.C. reported to him that at the start of
the school year, when A.C. was riding the bus with C.M., C.M. pinned her against the back
of the seat with his arm and sexually assaulted her. This testimony was consistent with
A.C.’s prior testimony.
¶11 On direct examination, the State asked Schoenfelder if he had reviewed the school
district bus records. Schoenfelder testified that he recalled reviewing those records and
that A.C. and C.M. were both on the same bus on the afternoon in question. Defense
counsel made no objection to this testimony.
¶12 The jury found that C.M. had committed the conduct involving E.E. (Counts I and
V) and A.C. (Count III) but was unable to reach a verdict on the sexual assault allegation
as to S.R. (Count II). The youth court committed C.M. to the custody of the Department
of Corrections for placement in a state youth correctional facility until age 18, with a
recommendation for placement at Pine Hills Youth Correctional Facility. On appeal, C.M.
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argues that his counsel was ineffective for failing to object to the admission of hearsay
statements that improperly bolstered the credibility of the complaining witnesses.
¶13 “Whether a person has been denied the right to due process is a question of
constitutional law and our review is plenary.” K.J.R. 2017 MT 45, ¶ 11, 386 Mont. 381,
391 P.3d 71 (citing In re A.S., 2004 MT 62, ¶ 9, 320 Mont. 268, 87 P.3d 408).
¶14 C.M. contends that his defense attorney provided ineffective assistance of counsel
when he failed to object to the admission of several inadmissible hearsay statements that
bolstered and corroborated the complaining witnesses’ trial testimony including: (1) when
Samms, Schoenfelder and E.E.’s mother testified about prior statements E.E. had made
which were consistent with E.E.’s testimony; (2) when Schoenfelder testified about
statements A.C. had made to him which were consistent with A.C.’s testimony; (3) when
Schoenfelder testified without personal knowledge about school bus records which defense
counsel had successfully objected to in the State’s case-in-chief.
¶15 Under the Due Process Clause of the Fourteenth Amendment, a youth has the right
to assistance of counsel during delinquency proceedings when such proceedings may result
in the commitment to an institution. In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451
(1967). Article II Section 15 of the Montana Constitution guarantees persons under 18 all
the fundamental rights of Article II of the Montana Constitution unless specifically
precluded by laws which enhance the protection of such persons. Section 41-5-1413,
MCA, provides a statutory right to counsel in all youth court proceedings. The right to
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counsel includes the right to effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984).
¶16 We have rejected the use of the Strickland test to evaluate youth court ineffective
assistance of counsel claims. In re K.J.R., ¶ 33. When evaluating ineffective assistance of
counsel claims, we consider whether the errors have resulted in prejudice. See In re A.S.,
¶ 31; In re K.J.R., ¶ 36. We have not adopted specific criteria for evaluating youth court
ineffective assistance of counsel claims. C.M. proposes we adopt a modified version for
evaluating ineffective assistance of counsel similar to the standards we adopted in In re
A.S., ¶¶ 26-28. Under the unique facts of this case, we find it unnecessary to adopt the
proposed modified criteria because the record fails to establish that C.M. was substantially
prejudiced under any standard.
¶17 The failure to object to inadmissible hearsay evidence may provide a basis for an
ineffective assistance of counsel claim. See e.g., In re J.J.L. 2010 MT 4, ¶¶ 21-22, 335
Mont. 23, 223 P.3d 921 (holding that counsel provided ineffective assistance when, among
other errors, counsel failed to object to multiple hearsay statements). Admission of prior
consistent statements may be harmless if the declarant testifies to the same facts at trial
because “the dangers that the hearsay rule seeks to avoid are not present.” State v. Veis,
1998 MT 162, ¶ 26, 289 Mont. 450, 962 P.2d 1153 (citations omitted). “Inadmissible
evidence is not prejudicial so long as the jury was presented with admissible evidence
proving the same facts as the tainted evidence.” State v. Smith, 2021 MT 148, ¶ 34, 404
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Mont. 245, 488 P.3d 531, (citing State v. Kaarma, 2017 MT 24, ¶ 89, 386 Mont. 243, 390
P.3d 609); see also, State v. Van Kirk, 2001 MT 184, ¶ 44, 306 Mont. 215, 32 P.3d 735.
¶18 Whether or not C.M.’s counsel was deficient in the matters C.M. alleges, C.M. has
failed to demonstrate that his counsel’s failures to object to the hearsay statements resulted
in substantial prejudice. Considering the entirety of the record, the State presented
sufficient admissible evidence to the jury that proved the same facts as the prior consistent
statements and bus records. Standing alone, the testimony of E.E. and A.C., while certainly
bolstered by the prior consistent statements, established all the facts necessary for the jury
to find that C.M. committed the conduct as alleged by the state in Counts I and V against
E.E. and Count III against A.C. C.M. similarly has not demonstrated that Schoenfelder’s
testimony concerning the bus records resulted in substantial prejudice. Irrespective of the
admissibility of the records, C.M.’s counsel was aware that C.M. and A.C. had ridden the
bus together. Rather than trying to dispute the benign fact that the two had been on the
same bus, C.M.’s counsel challenged A.C.’s allegation that C.M. had sexually assaulted
her on the bus. On cross-examination, he elicited testimony from A.C. that the bus was
full on the day she alleged C.M. had sexually assaulted her and that she was sitting on the
aisle side of the seat.
¶19 Aside from the hearsay statements, other witnesses provided admissible testimony
which lent credibility to A.C. and E.E.’s testimony. E.E.’s mother provided testimony
describing her daughter’s demeanor as “panicky” and “disoriented” when they spoke on
the phone that day along with significant changes she noticed in E.E.’s behavior following
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the incident involving C.M. Samms testified to her impressions of E.E.’s demeanor and
composure during the forensic interview.
¶20 A review of the entire record reflects that, notwithstanding the admission of the prior
consistent statements, C.M.’s counsel vigorously challenged the complaining witnesses’
testimony by highlighting inconsistencies and gaps in their testimony, as well as aspects of
the investigation. In that regard, it bears noting that as to Count II, C.M.’s counsel’s
representation resulted in the jury’s inability to reach a verdict.
¶21 Although both parties encourage this Court to adopt a specific standard for
ineffective assistance of counsel claims in youth court—with C.M. encouraging us to adopt
a modified version of the standard we adopted in In re A.S. and the State advocating for
the Strickland standard—either standard requires C.M. to demonstrate that he was
prejudiced by any alleged deficient performance. Based on our review of the entire record,
we conclude C.M. has failed to make such a demonstration.
¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. Considering the entirety of the record and the quality of
admissible evidence, we conclude that C.M. has not demonstrated that he was denied
effective assistance of counsel. We affirm.
/S/ JAMES JEREMIAH SHEA
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We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
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