State v. Henrich

886 P.2d 402, 268 Mont. 258, 51 State Rptr. 1275, 1994 Mont. LEXIS 286
CourtMontana Supreme Court
DecidedDecember 8, 1994
Docket93-618
StatusPublished
Cited by15 cases

This text of 886 P.2d 402 (State v. Henrich) 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. Henrich, 886 P.2d 402, 268 Mont. 258, 51 State Rptr. 1275, 1994 Mont. LEXIS 286 (Mo. 1994).

Opinions

[262]*262JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On April 23, 1993, defendant Steven Henrich was charged by information filed in the District Court for the Eighteenth Judicial District in Gallatin County with endangering the welfare of children, a misdemeanor, in violation of § 45-5-622(2)(a)(i), MCA; sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA; incest, a felony, in violation of § 45-5-507, MCA; two counts of sexual assault, a felony, in violation of § 45-5-502, MCA; and two counts of assault, a misdemeanor, in violation of § 45-5-201(l)(a), MCA. On September 24, 1993, the State filed an amended information amending one count of misdemeanor assault to felony assault in violation of § 45-5-201(3), MCA, and adding additional facts in support of other charges. Following a jury trial which was conducted from September 27-29, 1993, Henrich was convicted of six of the seven offenses charged, sentenced to 22 years in the Montana State Prison, and designated a dangerous offender. Henrich appeals. We affirm in part and reverse in part.

The issues on appeal are rephrased as follows:

1. Did the District Court abuse its discretion when it refused to grant Henrich’s motion for a mistrial and motion for a new trial based on a newspaper article about additional charges against Henrich published in the Bozeman Chronicle the day before the case was submitted to the jury?

2. Did the District Court abuse its discretion and did prejudice result when it allowed the jury to listen to a portion of one of the victim’s recorded testimony during deliberations?

3. Was there sufficient evidence for the jury to convict Henrich?

4. Did the District Court abuse its discretion when it allowed a school counselor to testify regarding a complaint made by one of the victims?

5. Did the District Court err when it concluded that Henrich is a dangerous offender?

6. Did the District Court err when it sentenced Henrich to the Montana State Prison?

FACTUAL BACKGROUND

Steven Henrich is married to Patricia Henrich. They are the parents of M.H., born on January 22, 1976, and A.H., born on May 9, 1977. Both daughters were removed from their parents’ home after A.H. complained in February 1992 that Henrich had physically and [263]*263sexually abused her sister over a period of five years. At trial, the girls related the following history of abuse prior to their removal.

M.H. testified that in 1987, while the family lived in West Yellowstone, Henrich would occasionally take her to the woods under the pretext that they were going to shoot weapons. Instead of shooting, M.H. said that Henrich fondled her and had her perform sexual acts for his physical gratification. This conduct was the basis for one count of felony sexual assault.

After they lived in West Yellowstone, but before they moved to Belgrade, Henrich worked as a chef at Big Sky and lived in the dormitories with M.H. M.H. testified that while living in the dormitories, Henrich had sexual intercourse with her. She also testified about several different time periods during which Henrich had intercourse with her at other locations from 1988 to 1992. M.H. testified that the sexual acts were a routine that she complied with because she was afraid of Henrich. These acts were the grounds for the charge of sexual intercourse without consent.

M.H. testified that in the fall of 1989, when she was in the eighth grade, she attended a Halloween dance against Henrich’s wishes. Upon returning from the dance, M.H. stated that Henrich backhanded her and spanked her with a cribbage board. This conduct was the basis for one count of misdemeanor assault.

M.H. testified that in February 1992, Henrich had her take speed or methamphetamine prescribed for him. This was the basis for the charge that he endangered the welfare of a child.

A.H. alleged that she was also a victim of Henrich’s abuse. She testified that in 1991 or 1992 Henrich, on different occasions, backhanded her in the face, kicked her in the stomach, and threw the telephone and electrical tape at her. This conduct was the basis for a second count of misdemeanor assault. Her testimony that he rubbed her crotch and vagina was the basis for the second count of sexual assault.

These allegations of physical and sexual abuse were first revealed when A.H. reported the occurrences to Belgrade school counselors in February of 1992. Following A.H.’s report, she and M.H. were removed from their parents’ home.

This case was tried from September 27-29,1993. On September 28, 1993, before the jury began deliberations, the Bozeman Chronicle published two stories about Henrich. One article merely summarized the trial. A second article was shaded and entitled “Man faces pimping [264]*264charges,” and involved additional charges filed against Henrich on September 17, 1993.

The next morning, Judge Thomas A. Olson discussed the articles with both attorneys. Henrich’s counsel immediately moved for a mistrial because of the publicity. The court instead questioned each juror individually in chambers to determine if any had read the article. Judge Olson placed paper over the title and sat 10 to 12 feet from the jurors and asked each juror the following series of questions:

1. Did that juror subscribe to the Bozeman Chronicle?

2. Did that juror see the Chronicle the preceding evening?

3. Did that juror see the shaded article or the article next to it about the trial?

4. Did anyone tell that juror about the shaded article or call their attention to it?

5. Did that juror see the television story about the trial on Channel 7 the previous night?

None of the jurors stated that they read or heard about details of the article; nor did any state that they had observed or heard about the details of the television coverage. As a result, the court allowed the trial to continue. Henrich’s counsel again objected.

As the jury was deliberating, they sent a note requesting to hear M.H.’s testimony, beginning with a specific question the prosecutor asked M.H. The court sent back the note and requested the jury to indicate the extent of the requested testimony. After the jury responded, the court discussed the request with counsel and replayed that portion of the testimony for the jury. The jury continued deliberating and later returned a verdict that Henrich was guilty of six of the seven counts with which he was charged. The court had dismissed the charge of incest following Henrich’s motion for a directed verdict.

Finally, after a sentencing hearing during which the court heard testimony from a professional counselor, a psychologist, Henrich, his wife, and others, the court sentenced Henrich to 22 years in prison and designated him a dangerous offender. Henrich claims numerous errors warrant reversal of his convictions. We affirm in part and reverse in part.

ISSUE 1

Did the District Court abuse its discretion when it refused to grant Henrich’s motion for a mistrial and motion for a new trial based on a newspaper article about additional charges against Henrich publish[265]*265ed in the Bozeman Chronicle the day before the case was submitted to the jury?

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Bluebook (online)
886 P.2d 402, 268 Mont. 258, 51 State Rptr. 1275, 1994 Mont. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henrich-mont-1994.