No. 95-342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 249
STATE OF MONTANA,
Plaintiff and Respondent:
ROCKY BRIAN GOODING,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ann C. German, Attorney at Law; Libby, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt,
Assistant Attorney General; Helena, Montana
Bernie Cassidy, Lincoln County Attorney; Libby, Montana
Submitted on Briefs: April 8,1999
Decided: October 21, 1999
Filed:
Justice Jim Regnier delivered the opinion of the Court.
71 This is an appeal from the Nineteenth Judicial District Court, Lincoln County. On
February 1, 1995, a jury found Defendant Rockey Brian Gooding guilty of felony sexual
assault and felony sexual intercourse without consent. On June 20, 1995, the District Court
entered judgment against Gooding. Gooding appeals from this judgment and certain
evidentiary rulings. We affirm.
72 Gooding’s appeal raises the following issue:
ll3 Did the District Court abuse its discretion by allowing the State to present the
testimony of Tina Glover concerning statements made by Gooding?
FACTUAL BACKGROUND
14 On July 22, 1994, the Deputy County Attorney for Lincoln County, Montana, filed
an Information with the Nineteenth Judicial District Court charging Gooding with felony
sexual assault, in violation of 3 45-5-502, MCA. The State alleged that between 1987 and
1990, Gooding touched G.T.‘s breasts and vagina and made her touch his penis. G.T. was
born January 9, 1981 and was, at the time ofthe alleged incidents, Gooding’s stepdaughter.
On August 15, 1994, Gooding pled not guilty to the charge. A trial date was set for
January 3 1, 1995. Subsequently, the court granted the State leave to amend the Information.
On January 23, 1995, the State filed an Amended Information charging that, in addition to
the original sexual assault charge, Gooding committed the offense of felony sexual
intercourse without consent, in violation of 5 45-5-503, MCA, or, in the alternative, the
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offense of felony attempt, in violation of 3 45-4-103, MCA. The State alleged that Gooding
“engaged in or tried to engage in sexual intercourse” with G.T.
75 From 1984 to 1990 Gooding lived in Libby, Montana with Debra Lundin, his wife at
the time, and four of her children from a previous marriage. Debra was employed by the
Libby Care Center and Gooding stayed home with the children while she was at work.
Gooding also ran a horse logging operation in the Big Creek area near Libby with the help
of his wife, stepchildren, and his half-brother, Paul Boothman. The State alleged that
Gooding sexually molested G.T. in his home, while Debra was at work, and at the horse
logging operation.
16 The family moved to Spokane in 1990. Sometime after the move to Spokane, the
family began attending the Sunrise Church of Christ. In approximately March 1993 Gooding
began confiding with two members of the church, Gerald and Tina Glover, about prior acts
of sexual molestation with G.T. At the time of these meetings, Gerald Glover was a
nonordained deacon in charge of the church’s food and clothing bank. Tina Glover, Gerald
Glover’s wife, did not hold an official church position.
77 The first meeting between Gerald Glover and Gooding occurred at the church.
Gooding sought the help of a junior minister and Gerald Glover sat in on their meeting. In
the following months, Gooding met with Gerald and Tina Glover in their home to discuss his
problems associated with his conduct toward his stepdaughter. Gerald and Tina were both
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present for some of these meetings. However, Goading would talk to Tina alone when
Gerald wasn’t available.
ll8 In December 1994 Detective D. A. Routt ofthe Spokane County Sheriffs Department
interviewed Gerald and Tina Glover during an investigation into Gooding’s relationship with
his stepdaughter. The Glovers informed Detective Routt that Gooding had revealed to them
that he had sexually molested his stepdaughter while in Montana. Detective Routt relayed
this information in a letter to the Lincoln County Sheriffs Department. On January 19,
1995, the State moved to add Gerald and Tina Glover as additional witnesses. The State also
submitted a notice of intent to depose Gerald and Tina Glover because the Glovers would not
be able to attend Gooding’s trial. After a hearing, and without objections from Gooding, the
court granted the State’s motions.
79 On January 26, 1995, the State deposed Tina and Gerald Glover. Gooding filed a
motion in limine the following day requesting the court to exclude from trial the deposition
testimony of both Tina and Gerald Glover because statements made to them by Gooding
were privileged under 3 26-l-804, MCA, the “clergy-penitent privilege.” The motion was
briefed by both sides. The court held a hearing on Gooding’s motion in limine and denied
his motion to exclude the testimony of Tina and Gerald Glover. The District Court went on
record to state that it was denying Gooding’s motion because neither Tina nor Gerald met
the standard of the statute.
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l[lO A jury trial was held on January 31 and February 1, 1995. During the trial, the State
offered and read Tina Glover’s deposition to the jury. The State did not offer the deposition
of Gerald Glover. The jury returned verdicts of guilty on the charges of sexual assault and
sexual intercourse without consent. On June 20,1995, the District Court entered its Sentence
and Judgment. The District Court sentenced Gooding to imprisonment in the Montana State
Prison for a term of 20 years with 10 years suspended for the crime of sexual intercourse
without consent, and for a term of 10 years with 5 years suspended for the crime of sexual
assault, the sentences to run consecutively. Gooding appeals from this judgment and certain
evidentiary rulings.
STANDARD OF REVIEW
111 We review a district court’s evidentiary rulings to determine whether the district court
abused its discretion. State v. MacKinnon, 1998 MT 78,rj12,288 Mont. 329,712,957 P.2d
23,112. A district court has broad discretion to determine whether evidence is relevant and
admissible. MacKinnon, 712. Absent a showing of abuse of discretion, we will not overturn
a court’s evidentiary determination. MacKinnon, 112.
DISCUSSION
112 Did the District Court abuse its discretion by allowing the State to present the
testimony of Tina Glover concerning statements made by Gooding?
713 On January 19, 1995, the State moved to add Gerald and Tina Glover as additional
witnesses and noticed their depositions. Gooding did not object and the court granted the
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State’s motions. On January 26, 1995, the State deposed both Gerald and Tina Glover.
Gooding filed a motion in limine the following day requesting the court to exclude from trial
the deposition testimony of both Gerald and Tina based on 5 26-l-804, MCA, the clergy-
penitent privilege. On January 30, 1995, the District Court held a hearing on Gooding’s
motion in limine. The court ruled that Gooding’s initial statements to Gerald and a junior
minister were not privileged under § 26-l-804, MCA, because Gerald was simply “a
bystander.” The court also ruled that, given the evidence presented, Gooding’s statements
to Gerald or Tina were not privileged because neither Gerald nor Tina met the requirements
of the statute. Lastly, the court noted that Tina was “a bystander” when Gooding first came
to her house to talk with Gerald. Accordingly, the court denied Gooding’s motion. At trial,
the State presented Tina Glover’s testimony, but not the testimony of Gerald Glover.
714 On appeal Gooding argues that the District Court erred by denying his motion in
limine to exclude the testimony of Gerald Glover and Tina Glover. Gooding asserts that his
statements to Gerald and Tina Glover were inadmissible under 5 26-I-804, MCA, because
he considered Gerald Glover to be a representative of his church and a spiritual advisor and
he believed conversations held at the Glovers’ house would be kept confidential,
715 Section 26-l-804, MCA, provides:
Confessions made to member of clergy. A clergyman or priest cannot,
without the consent of the person making the confession, be examined as to
any confession made to him in his professional character in the course of
discipline enjoined by the church to which he belongs.
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716 Initially, we observe that testimonial privileges must be strictly construed because
they contravene the fundamental principle that the public has the right to everyone’s
evidence. See MucKinnon, 121 (citing Trammel v. United States (1980), 445 U.S. 40, 50,
100 S. Ct. 906, 912, 63 L. Ed. 2d 186, 195). However, we note that the clergy-penitent
privilege must not be so strictly construed as to violate the right to the free exercise of
religion guaranteed by the First Amendment of the United States Constitution as well as
Article II, Section 5 of the Montana Constitution. See MucKinnon, 124.
117 We have had only one previous opportunity to address the application of the clergy-
penitent rule. In MucKinnon, we held that in order for confessions to be privileged under
5 26-l-804, MCA, those confessions must be directed to clergy persons acting in their
“professional character” and “in the course of discipline enjoined by the church.”
MucKinnon, 125. We explained that “professional character” meant that the clergy persons
must be acting in their capacities as clerics or in their religious roles; “in the course of
discipline enjoined” meant that the confession was made pursuant to the practice and
discipline of the church. MucKinnon, 7 25.
118 In A4acKinnon, we held that even under a broad interpretation of the statute, the
clergy-penitent privilege was not implicated by MacKinnon’s admissions. MacKinnon, 7 25.
Before MacKinnon’s admissions were made, he had been arguing with his former wife in a
restaurant parking lot. Concerned about the nature of this conversation, his former wife
suggested that they continue the conversation inside the restaurant in the presence of two
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members of her church. Following the District Court, we assumed that the two church
members were clergy for purposes of the privilege. However, we held that the District Court
did not abuse its discretion by requiring the two church members to testify concerning
admissions made by MacKinnon because they were not acting in theirprofessional character,
the admissions were not made for the purpose of confessing or seeking religious guidance,
counseling, admonishment, or advice, and MacKinnon had no reasonable expectation that
his admissions would be held in confidence. MacKinnon, 7 27.
719 We decline to address whether the District Court abused its discretion concerning the
admissibility of the testimony of Gerald Glover concerning statements made to him by
Gooding. Even if these statements fell under the protection of the clergy-penitent privilege,
Gooding does not assert that he was harmed or prejudiced in any way by the State’s
deposition of Gerald and the State did not present Gerald Glover’s testimony to the jury. We
will not reverse a conviction by reason of any error committed by the trial court unless the
record shows that the error was prejudicial. See 5 46-20-70 1, MCA.
120 We conclude that the District Court did not abuse its discretion by allowing the State
to present the deposition testimony of Tina Glover. The District Court denied Gooding’s
motion to exclude the testimony of Tina Glover because, at least as to statements made by
Gooding solely to her, she did not meet the standard of the statute, and as to statements made
to Gerald Gooding in her presence, she was “a bystander.”
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121 Although we have never clarified the definition of “clergy” under 5 26-l-804, MCA,
nothing in the record suggests that Tina Glover was a clergy person. Tina testified that she
was not a minister, clergyman, or deacon ofthe Sunrise Church ofchrist. She stated that the
church does not ordain women. She also stated that she did not have any special counseling
role within the church. Therefore, the District Court did not abuse its discretion in admitting
statements Gooding made to Tina Glover.
722 Gooding’s statements to Gerald in Tina’s presence were not privileged as to Tina,
even if we were to conclude that Gerald met the definition of clergy. Section 26-l-804,
MCA, states that “a clergyman or priest cannot be examined as to confessions made to
him.” The statute clearly creates a testimonial privilege for a “clergyman or priest”; the
statute does not expressly create a testimonial privilege for a nonclerical church member
for statements made in his or her presence. In interpreting a statute, we cannot add what has
been omitted. See 5 l-2-101, MCA.
123 Furthemrore, we note there was sufficient evidence for the District Court to conclude
that the other requirements of the clergy-penitent privilege were not met. In particular, the
District Court could have concluded that Gooding’s statements were not made to clergy
persons acting in their “professional character.” In an affidavit attached to Gooding’s motion
in limine, Gooding asserted that he considered Gerald Glover to be “a representative of my
church and my spiritual adviser.” He did not claim that Tina Glover fulfilled the same
functions. Moreover, while Gerald Glover testified in his deposition that Gooding
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approached him as “somebody to lean on to talk to and confess out [his] sins,” Tina
Glover testified that Gooding approached the Glovers because “he was concerned about his
conduct and about going to jail.” The evidence available to the District Court indicated that
Tina was acting as an ordinary confidant rather than as a clergy person.
124 Also, as counsel for Gooding admits, there is no factual record to support a finding
that these statements were made pursuant to the practices and discipline of the Sunrise
Church of Christ. Even ifwe had concluded that either Gerald or Tina Glover was a member
of the clergy for purposes of the clergy-penitent privilege, the evidence presented to the
District Court did not indicate that these admissions were made “in the course of discipline
enjoined by the church.” See 5 26-l-804, MCA. Accordingly, we conclude that the District
Court did not abuse its discretion by admitting the testimony of Tina Glover.
725 Lastly, we note that regardless of our determination that the District Court did not
abuse its discretion, Gooding was not prejudiced by the admission of Tina Glover’s
testimony at trial. The jury was presented with overwhelming uncontradicted evidence that
Gooding was guilty of the acts alleged by the State. The victim testified that when she lived
with Gooding in Libby, Gooding would make her come to his bedroom and get into his bed
where he would touch her breasts and vagina. The victim also testified that Gooding forced
her to have sexual intercourse while they were camping in the Big Creek area. The victim’s
brother substantially corroborated her testimony. Debra Lundin, the victim’s mother,
testified that she was made aware of Gooding’s conduct toward her daughter while the family
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resided in Libby-although, at the time, she believed his denials. Lundin also testified that
Gooding admitted to her that after he had learned from a friend in Libby that Lundin had
been molested, Gooding wanted to know what it was like. On the basis of the overwhelming
evidence of Gooding’s guilt, we conclude that Gooding was not prejudiced by the admission
of Tina Glover’s testimony. See, e.g., State v. Fuhrman (1996) 278 Mont. 396,407-08,925
P.2d 1162,1169 (holding that erroneous admission ofevidence without a limiting instruction
was harmless given the overwhelming evidence of the defendant’s guilt).
726 We affirm the judgment of the District Court.
We Concur: