State v. D. Weisbarth

2021 MT 92N

• Court: Montana Supreme Court
• Decided: April 13, 2021
• Docket: DA 19-0346
• Status: Unpublished

Opinion

04/13/2021

DA 19-0346 Case Number: DA 19-0346

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 92N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DAVID THOMAS WEISBARTH, II,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC 13-062 Honorable John A. Kutzman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Joshua Racki, Cascade County Attorney, Jennifer Quick, Amanda Lofink, Deputy County Attorneys, Great Falls, Montana

Submitted on Briefs: February 24, 2021

Decided: April 13, 2021

Filed: oe,,6tA- -if __________________________________________ Clerk Chief Justice Mike McGrath 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 and 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 David Thomas Weisbarth, II appeals from his conviction by a jury of the offense of

incest pursuant to § 45-5-507, MCA. This is Weisbarth’s second appeal. We reversed and

remanded his first conviction for a new trial. State v. Weisbarth, 2016 MT 214, 384 Mont.

424, 378 P.3d 1195. We affirm.

¶3 Prior to trial, the District Court held a Mazurek1 hearing on the State’s motion in

limine to prevent Weisbarth from soliciting testimony in violation of Montana’s Rape

Shield Statute, § 45-5-511, MCA. At the hearing, T.W.’s grandfather Roy Dittler (Roy),

Dr. Thomas J. Krajacich (Krajacich), and T.W.’s mother Gretchen Dittler all testified. Roy

testified that T.W. told him she saw her mother and mother’s boyfriend “playing horsey.”

Krajacich evaluated T.W. at the request of her family physician. Roy told Krajacich, who

then recorded the information in his chart as follows:

The first overnight visit seemed to go fairly well, but the second visit seemed to be more difficult for [T.W.]. She claimed that she had seen sexual behavior between her mother and [boyfriend], and Roy and Gina are really suspicious about whether that is a real observation versus “something pretend.” [T.W.] initially said that something happened to her also, but again, she then backed away from that later. Therefore, they are not really sure what has gone on.

1 State ex. rel. Mazurek v. Dist. Court of the Mont. Fourth Judicial Dist., 277 Mont. 349, 922 P.2d 474 (1996). 2 Weisbarth, ¶ 16 (emphasis in original). In his testimony, Roy admitted that he was a “dirty

old sailor” and that he may have been mistaken as to what T.W. meant by “playing horsey.”

T.W. was present during the appointment when Roy told Krajacich but did not participate.

Krajacich acknowledged that he did not intend the chart notes to be a verbatim transcription

of what Roy told him. Krajacich agreed that Roy may have used the words “playing

horsey.” The District Court held that while testimony supported the idea that Roy

personally believed T.W.’s statement was sexual in nature, “The record does not establish

what T.W. meant by ‘playing horsey.’ Neither does the record establish that Gretchen and

her new boyfriend did not engage in innocuous non-sexual behavior that a four-year-old

might describe as ‘playing horsey.’” (Emphasis in original.) Furthermore, the District

Court held that, “Mr. Weisbarth has not carried his burden of proving the May 2011

‘playing horsey’ remark was (a) an accusation about sexual conduct, or (b) that it was

false.” The court granted the State’s motion in limine.

¶4 T.W. testified at trial. The trial occurred approximately six years after Weisbarth

sexually abused her. At the time of trial, she was 11 years old. T.W. testified that she

understood what it meant to tell the truth and explained the importance of doing so. She

then described Weisbarth sexually abusing her. Weisbarth gave T.W. something to eat,

and then she went into the bathroom. Weisbarth followed her and pulled T.W.’s pants

down, “pressed on [her] privates,” penetrated her vagina with his hand, and then told her

to “pull his pants down and do the same thing to him.” T.W. refused to comply. On

3 cross-examination, T.W. described aspects of Weisbarth’s apartment, although she could

not remember many of the details. T.W. elaborated about Weisbarth’s abuse.

¶5 Roy testified about his relationship to T.W. as her grandfather and eventually her

legal parent. Roy testified further about the counseling that T.W. was participating in. He

explained that T.W. began counseling when she was about four years old. Roy felt that

T.W. had anger issues related to her past. With counseling and strong family support, T.W.

improved significantly and “[a] kinder, more gentle person started to evolve.” Roy

explained that T.W.’s negative behaviors dissipated by August 2012, and that Roy “never

doubted [T.W.’s] word.”

¶6 In November 2013, T.W. told Roy that her “pee-pee [hurt]” and asked Roy to “kiss

it better.” Roy told T.W. that it would be inappropriate. Soon after, following a visit with

her therapist, T.W. told Roy that she was afraid of Weisbarth. Roy stopped allowing T.W.

to have visits with Weisbarth without Roy present. Rather than delving into the issues

surrounding the circumstances with Weisbarth and T.W. right away, Roy decided to let

T.W.’s therapist address it during the next session.

¶7 On cross examination, Roy described T.W.’s behavior during her younger years.

Roy admitted that T.W. was not always honest. Roy testified that although he went through

a divorce in the fall of 2012. T.W.’s home life was not in an upheaval at that time, and

Roy’s ex-wife Gina was still involved in T.W.’s life. In early January T.W. told her mother

Gretchen about Weisbarth’s sexual abuse. Gretchen informed Roy of the abuse. Roy

explained that T.W. had no reason to lie about the sexual abuse because she was already

4 living with Roy, and allegations of the abuse would not have changed T.W.’s living

circumstances.

¶8 T.W.’s therapist Lisa Anderson (Anderson) testified that T.W. first came to her for

care in March 2012. At that time, T.W. had two diagnoses, reactive attachment disorder

(RAD) and attention deficit hyperactivity disorder. As T.W. progressed in her treatment,

Anderson felt that the RAD diagnosis was not appropriate for T.W. as she did not exhibit

the necessary criteria. Eventually, T.W. began treatment for post-traumatic stress disorder.

T.W. disclosed the sexual abuse by Weisbarth to her therapist in January 2013. T.W. did

not exhibit symptoms of RAD during Roy’s divorce, at the time she was abused, nor during

the period when she disclosed the sexual abuse.

¶9 On January 18, 2013, Detective Noah Scott (Scott) conducted the forensic interview

of T.W. Scott outlined the protocols for interviewing young children, which includes

repeating what the child says back to them to verify accuracy and ensure that people

listening can hear the statement. Scott’s entire interview with T.W. was published to the

jury.

¶10 Scott also interviewed Weisbarth during his investigation. Weisbarth disclosed

some information that concerned Scott including that he had sexual thoughts about T.W.,

and that he failed to have concern for T.W. regarding possible sexual abuse. For instance,

Weisbarth told Scott that he was giving T.W. a bath when she was two years old and had

inappropriate thoughts although he never acted on his fantasies. When asked about sexual

abuse Weisbarth had experienced as a child, he told Scott, “Do I have a problem, yes. Have

5 I had thoughts, yes. I will admit that. I was actually, I was molested when I was a child

by a neighbor. And yes I have had the thoughts.”

¶11 Scott asked Weisbarth about inappropriate thoughts about T.W. specifically, “What

about times that you think are inappropriate?” Weisbarth responded, “The only times that

I ever had the thought of this inappropriate was when I was giving her a bath. Like I said,

I don’t even know for sure if I was turned on or not. I don’t know why that thought popped

into my head.” Scott also investigated Weisbarth’s electronic devices and Scott did not

find any evidence of child pornography. Weisbarth did not admit during the interview to

sexually abusing T.W., although he did corroborate T.W.’s testimony about what he fed

her on the day of the abuse.

¶12 After testifying at the pretrial hearing, Krajacich testified at trial that T.W.’s family

physician asked him to evaluate T.W. Krajacich diagnosed T.W. with RAD. He explained

RAD, and the two types of RAD that are prevalent. Krajacich acknowledged that RAD

can improve and eventually go away if a child is placed in a stable environment. Krajacich

acknowledged that children who sometimes tell “white lies” are also capable of telling the

truth and that often when they are confronted, they will admit the truth after lying.

¶13 Weisbarth argues that the District Court erred in concluding that T.W.’s statement

about her mother and mother’s boyfriend “playing horsey” was not an allegation of sexual

misconduct, and that T.W.’s statement was an allegation because of Roy’s interpretation

of the statement. Weisbarth argues further that the court erred in preventing him from

cross-examining T.W. about the alleged prior allegation of sexual misconduct.

6 ¶14 We review evidentiary rulings for an abuse of discretion. State v. Ring, 2014 MT

49, ¶ 12, 374 Mont. 109, 321 P.3d 800 (citation omitted). To the extent that a district

court’s ruling is based on a conclusion of law, this Court’s review is de novo. Ring, ¶ 12

(citation omitted).

¶15 There is a conflict between a defendant’s right to confront his accuser arising from

the Sixth Amendment to the United States Constitution, and a victim’s right to protection

under the Rape Shield Law. State v. Colburn, 2016 MT 41, ¶ 24, 382 Mont. 223, 366 P.3d

258. It is the trial court’s responsibility to strike a balance between the defendant’s right

to present a defense, and a victim’s right under the Rape Shield Law. Colburn, ¶ 25. As

such, evidence of a false sexual accusation may be admissible after a separate hearing

inquiring into whether the witness made a prior false accusation of sexual misconduct.

Weisbarth, ¶ 22 (citing Ring, ¶ 17). At the hearing, the defendant must establish by a

preponderance of the evidence that (1) the accusation or accusations were in fact made; (2)

that the accusation or accusations were in fact false; and (3) that the evidence is more

probative than prejudicial. Ring, ¶ 18 (quoting Mazurek, 277 Mont. at 358, 922 P.2d at

480).

¶16 The District Court held a pretrial hearing to evaluate the evidence presented by the

defense regarding the supposition that when T.W. told Roy that Gretchen and her boyfriend

were “playing horsey,” it was a sexual allegation. The District Court heard testimony,

evaluated the record, and found that there was no prior allegation of sexual misconduct.

We agree. While Roy clearly believed, at least initially, that “playing horsey” was sexual

in nature, he also admitted that he was a “dirty old sailor” and that he could have been

7 mistaken as to what T.W.’s statement meant. Moreover, T.W. did not personally make any

statements of this nature to Krajacich. Only Roy told Krajacich about the “playing horsey”

statement, and only Roy interpreted that statement. Krajacich’s musings in the report

regarding the statement after Roy’s disclosure do not amount to evidence of a prior

allegation of sexual misconduct by T.W. Moreover, the term “playing horsey” does not

evoke ideas of a sexual nature. The District Court was correct in concluding that the

evidence presented did not support the theory that T.W. made a prior allegation of sexual

misconduct. As a threshold matter, it was not established by a preponderance of the

evidence that an accusation was in fact made. Thus, the second and third prongs of the

Mazurek test were not satisfied.

¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶18 Affirmed.

/S/ MIKE McGRATH

We Concur:

/S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ JIM RICE