State v. Awbery

State v. Awbery, 2016 MT 48 (March 1, 2016) (McGrath, C.J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court properly excluded evidence that some of the victims had suffered prior sexual abuse by others; (2) whether Awbery is entitled to a new trial based on prosecutorial misconduct; and (3) whether Awbery is entitled to a new trial based on the cumulative effect of several alleged errors.

Short Answer: (1) Yes; (2) no; and (3) no.


Facts: The state charged Awbery with two counts of incest against his daughter, AA, when she was 12 or younger; sexual assault and sexual intercourse without consent against AA’s half-sister, JG, when she was 16 or younger; sexual intercourse without consent again IA when she was 12 or younger; and sexual assault against NH when she was 16 or younger.

Before trial the state moved to exclude evidence that three of the girls had been sexually assault by others prior to Awbery’s offenses, relying on the Rape Shield Law. Two of the girls were assaulted by a man who was convicted of sexual offenses as a result, and the third was not fully investigated because of the victim’s parents’ wishes.

The defense argued that Awbery’s constitutional right to present a defense was implicated and overcame the exclusions of the Rape Shield Law. They argued that the prior assaults increased the chance that the victims suffered form PTSD, which increased the chance that their allegations against Awbery were erroneous. The defense did not intend to ask the girls about the incidents, but instead predicted that the testimony of others might make the prior assaults relevant.

The district court denied the motion to exclude prior assault evidence outright, but warned that if it were admitted it would have to be “very, very relevant” and limited.

Each victim testified at trial, describing how Awbery sexually abused them. The state also presented three expert witnesses. Awbery testified in his own defense, denying that he committed any of the acts described by the victims.

Procedural Posture & Holding: At trial, the court excluded evidence of prior assaults against three victims because it would cause undue prejudice and confuse the jury. The jury convicted Awbery on all counts. Awbery appeals, and the Supreme Court affirms.

Reasoning: (1) Montana’s Rape Shield Law is designed to prevent the trial of the defendant from becoming a trial of the victim’s prior sexual conduct. As in Colburn, 2016 MT 41, the Court notes that the district court’s role is to strike a balance between the victim’s right under the Rape Shield Law and the defendant’s right to confront and present evidence. Here, the district court properly balanced those rights and found that Awbery could not make a sufficient foundation to admit evidence of the prior assault. The defense theory never progressed beyond conjecture and speculation. The district court properly excluded evidence of prior assaults against three of the four victims.

(2) Awbery contends the county attorney made prejudicial comments in closing argument that denied him a fair trial. The defense did not object to any part of closing, and asks for plain error review. The Court declines to undertake plain error review.

(3) Based upon the Court’s disposition of the first two issues, it declines to consider this issue.

Justice Cotter’s Concurrence (joined by Baker, J., and McKinnon, J.):  Even if Awbery had been allowed to introduce evidence of the prior assaults, he had to elicit testimony tying the victims’ PTSD to the prior assaults, and/or establish that their PTSD led them to fabricate evidence against him. He called no expert witnesses who would support those conclusions. “Given the protracted and confusing lengths to which the defendant would have to go to connect the prior assaults to the victims’ various psychological conditions and the lack of any clear path to get there, I conclude that the court did not abuse its discretion in excluding the subject evidence.” ¶ 43.