State v. R. Tyer

2020 MT 273N

Opinion

10/27/2020

DA 18-0218 Case Number: DA 18-0218

IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 273N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RANDY LEE TYER,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 17-36 Honorable James A. Haynes, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana

William E. Fulbright, Ravalli County Attorney, Meghann Paddock, Deputy County Attorney, Hamilton, Montana

Submitted on Briefs: October 7, 2020

Decided: October 27, 2020

Filed:

r--6ta•--df __________________________________________ Clerk Justice Ingrid Gustafson 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 Randy Lee Tyer (Tyer) appeals from the November 22, 2017 Order Granting Leave

to File Third Amended Information and the February 27, 2018 Judgment issued by the

Twenty-First Judicial District Court, Ravalli County. We affirm.

¶3 Tyer was initially charged by Information with two counts of sexual intercourse

without consent (SIWOC), one count of sexual assault, and one count of indecent exposure

to a minor. On October 25, 2017, the State filed an Amended Information, which deleted

one of the SIWOC charges and added a new sexual assault charge. On November 16, 2017,

the State filed its Second Amended Information, which removed some specificity of the

conduct alleged, modifying Count I to SIWOC by “intercourse by penetration of the vulva”

and modifying Count II to sexual assault by “sexual contact with the vulva[.]” Count III

Sexual Assault and Count IV Indecent Exposure to a Minor remained unchanged. On

November 22, 2017, the State sought leave to file its Third Amended Information to

enlarge the date range of the four charged offenses by one year—the conduct was originally

asserted to have occurred between January 1, 2015, and September 30, 2016, and the State

sought to enlarge the time the alleged conduct occurred to between January 1, 2014, and

September 30, 2016. In its motion the State noted Tyer objected to the amendment. On

2 that same day, the District Court granted the State’s motion, concluding the amendment

did not add or change the offenses charged and did not prejudice Tyer’s rights. On the

morning of the first day of trial, November 27, 2017, at the final pretrial conference, Tyer

acknowledged receipt of the Third Amended Information and the court’s prior granting of

leave to file it. Tyer indicated he had objected to the amendment and continued to object

to it as it was not timely having been filed under five days before trial. Other than

untimeliness, Tyer did not assert any other objection to the Third Amended Information

and specifically did not assert that the date change in any way impaired or altered his ability

to proceed to trial and present a full defense.

¶4 Following this conference, the parties proceeded to trial. At trial, the child victim,

E.C., testified extensively about Tyer touching her and exposing himself to her on several

occasions. Her testimony was subjected to cross-examination. Following her testimony,

the State sought to introduce a video of E.C.’s forensic interview, as well as testimony from

her counselor, Val Widmer, which included testimony as to what E.C. had told and

disclosed to her. Tyer objected on the basis of hearsay—asserting these included

out-of-court statements made by E.C. which were going to be offered for their truth. The

State contended E.C.’s statements made during the forensic interview and to Widmer were

admissible non-hearsay under M. R. Evid. 801(d)(1). Tyer’s counsel then attempted to

point out that the hearsay exception found in Rule 801(d)(1) permitted prior inconsistent

statements but did not permit admission of prior consistent statements unless offered to

rebut a charge of subsequent fabrication or motive which counsel asserted did not exist

here. The District Court then advised counsel of its mistaken belief that these statements

3 would not be hearsay as E.C. had already testified. Following this rather unusual

discussion,1 defense counsel appeared to recognize the futility in trying to further educate

1 THE COURT: Okay. I’m not seeing it as hearsay. This little girl has gotten on the stand and testified. That’s in-court testimony.

MR. SMITH: Correct.

THE COURT: If this other person, the interviewer or the mom or somebody says, Yeah, that’s what she told me, the way you could do it that’s a little more cumbersome is you could put [E.C.] on in between her mother testifying.

Did you have a conversation in September at 8 o’clock? Yes. What did [E.C.] say? Objection. Hearsay. [E.C.] comes on the stand. I told my mom this, that, and the other thing. The mom comes back on the stand. [E.C.] told me this, that, or the other thing. Next day what did you do? Did you talk to [E.C.] again? Yes. What did she tell you? Objection. [E.C.] gets back on the stand. I told my mom this, that, or the other thing. Mom back on the stand.

So it’s a cumbersome way to go through dealing with the hearsay rule. And the way I said you could deal with it and the way the courts allow it to be dealt with is, if the state is going to link it up--and they said they were going to link it up by having [E.C.] on the stand—that’s how you get the linkage between, Mom, did [E.C.] tell you something? Yes. What did she say? Objection; hearsay. I’m going to link it up. Okay. What did she say?

If the state fails to link it up, they’ve got a serious problem in their case. But the way I understood it [E.C.] got on the stand and she testified to everything.

Are you telling me that there’s something that’s going to come in through these interviews with Ms. Widmer or Ms. Vermillion that isn’t what [E.C.] already testified about?

. . .

THE COURT: So is there something they’re going to say that wasn’t covered by [E.C.’s] testimony?

MR. SMITH: Potentially there is.

4 the court and conceded he would make his objections when they occurred during the video

and Widmer’s testimony. Following a break, the court and counsel engaged in further

discussion regarding the forensic interview video. The State advised it believed the video

was admissible pursuant to State v. Mederos, 2013 MT 318, 372 Mont. 325, 312 P.3d 438,

which it interpreted to permit admission of prior consistent statements in conjunction with

inconsistent statements when they blur together and the nature of the witness’s testimony

makes it difficult to separate out those two portions of the prior statement. The District

Court recounted defense counsel’s hearsay objection but indicated it had already

determined the forensic interview was not hearsay as E.C. had already testified. Other than

the hearsay objection which the court had overruled, defense counsel indicated no other

objection to the video. The video was then admitted during the forensic interviewer’s

testimony.

THE COURT: What?

MR. SMITH: I can’t, without giving you a transcript, go through point by point. I’ve now heard the testimony of [E.C], who is the in-court person. The state is now going to offer out-of-court statements, hearsay.

THE COURT: It’s not hearsay anymore.

MR. SMITH: Okay. All right. So do I need to object to hearsay every time, or would the Court prefer I do not?

THE COURT: I’m not sure what you’re objecting to.

MR. SMITH: Well, it’s hearsay, Judge.

THE COURT: You’re objecting to the admission of a video? Are you objecting to the witness talking about what [E.C.] told her?

MR. SMITH: Correct, both. 5 ¶5 Following the forensic interviewer, the State called Widmer to testify. Throughout

her testimony the prosecution repeatedly asked her questions calling for hearsay2 to which

defense counsel repeatedly objected. The objections were overruled without further

explanation.

¶6 At the conclusion of trial, the jury found Tyer guilty of all charges. Tyer appeals,

asserting the District Court erred in permitting the State to proceed on its Third Amended

Information and the District Court erred in admitting E.C.’s forensic interview and

out-of-court hearsay statements of E.C. made to Widmer. Tyer asserts the repetition of

E.C.’s statements throughout the forensic interview and Widmer’s trial testimony were

inappropriately used to bolster E.C.’s testimony. Tyer seeks reversal and remand for a new

trial.

¶7 Amendment to an Information is reviewed for abuse of discretion. State v. Wilson,

2007 MT 327, ¶ 19, 340 Mont. 191, 172 P.3d 1264. Evidentiary rulings are generally

reviewed for an abuse of discretion, but when the trial court’s rulings are based on an

2 Q. What did [E.C.] tell you happened to her during the course of your counseling sessions? ... Q. What specific types of abuse did [E.C.] disclose to you? ... Q. What did [E.C.] tell you about how those instances made her feel? ... Q. Why did [E.C] tell you about how she decided to tell? ... Q. What did [E.C.] tell you she was worried about? ... Q. Who else did she disclose abuse by during your counseling sessions?

6 evidentiary rule, we review those rulings de novo. State v. Stewart, 2012 MT 317, ¶ 23,

367 Mont. 503, 291 P.3d 1187.

¶8 Under § 46-11-205(3), MCA, the court may permit an information be amended as

to form at any time before a verdict. Amendments of substance, though, are prohibited

within five days of trial. Section 46-11-205(1), MCA. Here, the District Court determined

the contested amendment was, in essence, one of form, not substance. We agree. The

purpose of an information is to reasonably apprise the accused of the charges against him

so he has the opportunity to prepare and present a full defense. The parties did not dispute

that, in cases involving sexual abuse against younger children, Montana law does not

impose exacting standards for identifying the dates of the offense as younger children are

less likely to distinguish dates and times with specificity.3 Other than objecting to the

timeliness of the amendment, Tyer did not assert prior to appeal that the amendment in any

way impaired his understanding of the offenses charged or impaired his ability to present

a full defense. We conclude the amendment was one of form, not substance, and the

District Court did not abuse its discretion in permitting the amendment.

¶9 We turn now to the hearsay issue. From our review of the record, the video of E.C.’s

forensic interview clearly contains out-of-court statements made by E.C. offered for their

truth.4 The testimony of Widmer likewise contains out-of-court statements as to what E.C.

3 The jury was instructed, without objection, that “in cases of sexual abuse against younger children, Montana law does not impose exacting standards for identifying the dates of the offenses. Younger children are less likely to distinguish dates and times with specificity.” 4 The State asserts Tyer did not specifically object to any prior statements of E.C. in her forensic interview. While we agree defense counsel at one time indicated he would pose objections to the 7 told or disclosed to her, also offered for their truth. The District Court erroneously

determined the out-of-court statements made by E.C. at her forensic interview and to her

counselor were not hearsay as E.C. had testified earlier and the court expected the

prosecution would “link it up” later.5

¶10 Not all-out-of court statements constitute hearsay. M. R. Evid. 801(d)(1) provides

an exception to an out-of-court statement presented where the declarant testifies at the trial

and is subject to cross-examination concerning the statement under two separate

circumstances. The first circumstance involves a statement that is “inconsistent with the

declarant’s testimony” which may include claimed lapses of memory. Mederos, ¶ 15

(citing M. R. Evid. 801(d)(1)(A)). The second involves a statement that is “consistent with

the declarant’s testimony and is offered to rebut an express or implied charge against the

declarant of subsequent fabrication, improper influence or motive.” Mederos, ¶ 15 (citing

M. R. Evid. 801(d)(1)(B)). Further, a court may admit consistent statements in conjunction

with inconsistent statements where the nature of a witness’s testimony makes it difficult

for the court, and likely confusing to the jury, to separate or parse out the consistent from

the inconsistent portions of the prior statement. Mederos, ¶ 18. From our review of the

record, the out-of-court statements made by E.C. consisted of both prior consistent and

video as they came up, it is clear from the court’s discussion with counsel that Tyer objected to statements in the video made by E.C., asserting they were hearsay. The District Court clearly denied the objection based on its erroneous conclusion the statements were not hearsay as E.C. had testified earlier. The District Court clearly had opportunity to address the objection such that it was not waived by defense counsel’s failure to further make hearsay objections during presentation of the video. 5 We note there are no “the declarant testified earlier” or “link it up later” exceptions to hearsay.

8 inconsistent statements to those made by E.C. during her testimony.6 Given the nature of

the forensic interview and Widmer’s testimony, it would have been difficult for the court

and confusing to the jury to try to parse the mixed inconsistent statements with the

consistent ones. Pursuant to M. R. Evid 801(d)(1) and Mederos, the out-of-court

statements made by E.C. during her forensic interview and as testified to by Widmer were

appropriately admitted into evidence.

¶11 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.

¶12 Affirmed.

/S/ INGRID GUSTAFSON

We concur:

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

6 Here, E.C. testified at trial and was subject to cross-examination. During cross-examination inconsistencies between E.C.’s trial testimony and a defense interview were brought out including several instances where E.C. expressed lack of memory. E.C.’s testimony was vague at times and somewhat unclear. 9