State v. Alvin Duncan

2008 MT 148, 183 P.3d 111, 343 Mont. 220, 2008 Mont. LEXIS 216
CourtMontana Supreme Court
DecidedApril 29, 2008
DocketDA 06-0653
StatusPublished
Cited by38 cases

This text of 2008 MT 148 (State v. Alvin Duncan) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alvin Duncan, 2008 MT 148, 183 P.3d 111, 343 Mont. 220, 2008 Mont. LEXIS 216 (Mo. 2008).

Opinions

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Alvin J. Duncan (“Duncan”) was convicted by a jury of two counts of felony sexual assault, and sentenced to forty years in prison, with [222]*222twenty-four years suspended. He appeals both the jury’s verdict and the legality of his sentence. We affirm in part, and reverse and remand in part.

¶2 Duncan raises the following issues on appeal:

¶3 I. Did the District Court err by denying Duncan’s motion to dismiss the charges pertaining to C.S.?

¶4 II. Did the District Court abuse its discretion by denying Duncan’s motion to sever the charges?

¶5 III. Did the District Court abuse its discretion by denying Duncan’s motion to continue the trial?

¶6 IV. Was the jury’s verdict supported by sufficient evidence?

¶7 V. Was the sentence imposed by the District Court legal?

BACKGROUND

¶8 In the same information, the State charged Duncan with sexually assaulting his stepdaughter, C.S., and her friends, V.G. and N.M., all minors. The State later amended the information to add a fourth count against Duncan: sexual intercourse without consent with C.S. The offenses all allegedly took place in Duncan’s home during the summer of 2004.

¶9 During a search of Duncan’s house, the police seized C.S.’s comforter as evidence. The comforter was stored in the state crime laboratory, but was destroyed when the sprinklers in the evidence lab malfunctioned. The malfunction occurred before the comforter could be tested for the presence or absence of Duncan’s DNA. Duncan subsequently moved to dismiss the two charges concerning C.S., arguing that the State’s destruction of potentially exculpatory evidence denied him due process of law.

¶10 Prior to trial, Duncan also moved to sever the charges. The District Court denied his motion, holding that the offenses were properly joined under § 46-11-404(1), MCA, and that the consolidation of the charges would not unfairly prejudice Duncan’s defense. The District Court ruled on both the motion to dismiss and the motion to sever, as well as several of Duncan’s other pre-trial motions, two days before trial was scheduled to begin. Duncan immediately filed a motion to continue the trial, arguing that in light of the District Court’s then recent rulings, he needed more time to prepare his defense. The District Court denied his motion to continue, and the matter proceeded to a jury trial.

¶11 At trial, each of the victims took the stand to describe the alleged sexual assaults. C.S. testified that Duncan frequently hugged her, and that while he was hugging her, his hands would roam to her chest, [223]*223thighs, or buttocks. During the summer of2004, when her mother was at work, C.S. said Duncan invited her into his bedroom. She alleged that Duncan asked her to lie down on the bed and take off her pants, so he could “check[] [her] for ticks.” Then, C.S. testified, he penetrated her with his finger and his perns. C.S. claimed that Duncan forced her to have sexual intercourse on at least one other occasion, and repeatedly asked her if she wanted to have sex with him.

¶12 One night during that same summer, N.M. slept over at C.S.’s house. At about one o’clock in the morning, N.M. testified, she felt a hand on her chest. N.M. claimed she awoke to find Duncan’s hand underneath her bra. She asked him to stop and threatened to tell his wife.

¶13 V.G., nine years old, was a friend of Duncan’s youngest stepdaughter. V.G. testified that Duncan often tickled her. Twice, she testified, he touched her in her “lower part” when he tickled her. The first time, she alleged, he “backed me into a corner and started tickling me and kept going lower and lower .... [T]hat was above my swimming suit and my shorts.” The second time, she claimed, “he went lower and lower, and this time under my bathing suit still the front area.” V.G. did not believe that Duncan had touched her by accident, because “it was longer than he tickled me on my stomach.” Duncan’s youngest stepdaughter testified that she witnessed this last incident: “I saw him, because [V.G.] was backed into a corner and he was tickling her, and then I saw him reach down her pants.”

¶14 The jury convicted Duncan of sexually assaulting N.M. and V.G., and acquitted him of sexually assaulting and raping C.S. As part of the pre-sentence investigation report (PSI), Duncan submitted to a psychological evaluation performed by Michael Sullivan (“Sullivan”), the director of a sex offender treatment program. Sullivan classified Duncan as a Level I, or low risk, sex offender. Throughout the evaluation and the sentencing hearing, Duncan maintained his innocence, and denied assaulting the girls. He claimed the girls had conspired against him to fabricate the charges. Duncan believed C.S. disliked him and wanted to get rid of him so her divorced parents could reunite. At the sentencing hearing, Sullivan testified that Duncan would be ineligible for most community-release treatment programs, due to the fact that he denied committing the sexual assaults. When the District Court pronounced its sentence, it cited Duncan’s lack of remorse as a factor influencing its decision. Duncan appeals both of his convictions as well as his sentence.

[224]*224DISCUSSION

¶15 I. Did the District Court err by denying Duncan’s motion to dismiss the charges pertaining to C.S.?

¶16 On appeal, Duncan claims that the District Court never ruled on his motion to dismiss the charges concerning C.S., and that the court’s failure to rule constitutes error.1 Our review of the record suggests otherwise. On March 23,2006, Duncan filed his motion to dismiss. The District Court addressed this motion, along with Duncan’s other pretrial motions, at the final pre-trial conference on April 28, 2006. On May 9,2006, the clerk of court telephoned Duncan’s attorney to notify him that the court had orally denied all his pending pre-trial motions-a fact which Duncan himself acknowledges in the motion for continuance he filed later that day. The District Court did not issue any written order or explanation concerning its ruling on the motion to dismiss.

¶17 Though not properly couched, Duncan’s challenge essentially presents a question of law: whether the District Court erred by denying his motion to dismiss based on the destruction of evidence in state custody. We review a district court’s decision to grant or deny a motion to dismiss to determine if the court applied the law correctly. State v. Hicks, 2006 MT 71, ¶ 25, 331 Mont. 471, ¶ 25, 133 P.3d 206, ¶ 25. To prevail on his due process claim, Duncan must prove that the State negligently suppressed evidence which was exculpatory and vital to his defense. State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, ¶ 16, 962 P.2d 571, ¶ 16. Exculpatory evidence is evidence that “[wjould have tended to clear the accused of guilt, to vitiate a conviction.” Belgarde, ¶ 16 (internal citation omitted).

¶18 Duncan has failed to prove that the evidence in question was exculpatory. The comforter in question was seized from C.S.’s room. C.S. testified that Duncan forced her to have sex with him in his bedroom, on his bed. Even assuming that her comforter would have tested negative for Duncan’s DNA, this evidence would not have exonerated him of the charges concerning C.S. Since the comforter had no potential to clear Duncan of guilt, we conclude Duncan was not deprived of due process of law.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 MT 148, 183 P.3d 111, 343 Mont. 220, 2008 Mont. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alvin-duncan-mont-2008.