08/16/2022
DA 19-0614
Case Number: DA 19-0614
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 163
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GARY HANSEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDC 13-133(b)
Honorable Elizabeth A. Best, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Joshua Racki, Cascade County Attorney, Jennifer Quick, Amanda
Lofink, Deputy County Attorneys, Great Falls, Montana
Submitted on Briefs: May 11, 2022
Decided: August 11, 2022
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Defendant Gary Hansen appeals the August 30, 2019 Sentencing Order and
Judgment following his conviction in the Eighth Judicial District Court, Cascade County,
of Count I: Incest, a felony, in violation of § 45-5-507, MCA. We affirm and restate the
issue on appeal as follows:
Whether the District Court erred excluding evidence of the complaining witness’s prior
statements regarding an alleged “false accusation” of sexual assault.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 Hansen was accused of committing incest against his granddaughter, K.O. The
State charged Hansen with four counts of incest and one count of obstructing a peace
officer. The State amended the charge to felony sexual assault before trial. At the June
2015 trial, Hansen pled “no contest.” This Court reversed, holding that the district court
erred by accepting Hansen’s “no contest” plea to a sexual offense, and remanded for a trial.
State v. Hansen, 2017 MT 280,
389 Mont. 299,
405 P.3d 625 (overruled in Gardipee v.
Salmonsen,
2021 MT 115, ¶ 10,
404 Mont. 144,
486 P.3d 689 to the extent it failed to
“distinguish between an illegal sentence and an invalid plea”).
¶3 The State reinstated the original charges in 2017 and eventually amended the
Information to one count of incest. Prior to trial, the State sought to exclude evidence that
K.O. had made two prior allegations of sexual assault. In a 2013 forensic interview, when
K.O. was eight years old, she discussed involvement with her male cousin, A.G.H., when
they were both about five years old. In 2018, K.O. disclosed to a female cousin that she
was in a sexual relationship with her mother’s then boyfriend, Francisco Medina.
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¶4 The District Court held an evidentiary hearing on January 9, 2019, pursuant to State
ex rel. Mazurek v. Dist. Ct. of the Mont. Fourth Judicial Dist., 277 Mont. 349,
922 P.2d
474 (1996), receiving testimony from K.O., A.G.H., Medina, and others. The video of the
2013 forensic interview was also entered into evidence. The District Court ruled that
K.O.’s accusation about Medina was admissible, but K.O.’s statements regarding A.G.H.
were not admissible because there was not “adequate evidence presented to prove that an
allegation was made or that it was false.”
¶5 In May 2019, a five-day jury trial convened. The jury convicted Hansen of incest
and the court sentenced him to the Montana State Prison for a 100-year sentence, with
50 years suspended, and a 10-year parole restriction.
¶6 The facts underlying Hansen’s conviction are as follows: Hansen’s biological
granddaughter, K.O., disclosed in 2013 that Hansen had been sexually assaulting her since
she was approximately three years old. Her earliest memory of the abuse involved “playing
a game” in Hansen’s living room with all the lights off where she would attempt to turn off
the T.V. Hansen made K.O. play this game naked, and afterwards would sexually assault
her. For several years, Hansen would sexually abuse K.O. in various rooms throughout his
home and in his vehicle. Hansen threatened K.O., telling her that if she told anyone about
the abuse he would go to jail. K.O. was also worried that if she disclosed the abuse, she
would lose her pet bird that lived at Hansen’s house.
¶7 In February 2013, K.O. disclosed the abuse to a school counselor, and the matter
was referred to law enforcement. Paula Samms, a licensed clinical professional counselor,
conducted forensic interviews of K.O., the first one on February 22, 2013, and the second
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on March 26, 2013. During the February interview, K.O. described that Hansen routinely
sexually assaulted her, that it hurt, left her genitals red, and once she thought she was
bleeding. K.O. had difficulty describing the incidents, but with the help of a diagram and
drawings, she was able to convey where on her body Hansen had touched her. During this
interview, the following exchange occurred between K.O. and Samms:
K.O.: My Grandpa told me not to tell anyone [about the abuse].
SAMMS: Okay. So your Grandpa told you not to tell anyone? Did he say
something would happen if you told?
K.O.: That he would go to a jail.
SAMMS: He said that he would go to a jail? Okay. Okay. Well, thanks for
letting me know that. You know when someone tells you to keep a
secret like about hurting you or touching you or something like that,
that’s an important one to tell, even when you’re scared. Did he say
anything else would happen if you told?
K.O.: [shakes head]
SAMMS: No? Did you ever tell anyone else besides this lady that you knew
from Eastgate? Like a friend or something like that?
K.O.: I told my cousin.
SAMMS: You did?
K.O.: That Grandpa was sleeping with me.
SAMMS: Okay. What’s your cousin’s name?
K.O.: [A.G.H.]
SAMMS: [A.G.H.] Is [A.G.H.] older than you or younger than you?
K.O.: I don’t know . . . .
. . .
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SAMMS: How old were you when you told [A.G.H.]?
K.O.: Maybe about five.
SAMMS: About five? Did [A.G.H.] say something when you told him?
K.O.: No. He used to do it, too.
SAMMS: He used to do it, too? Tell me what you mean.
K.O.: He used to do what Grandpa did, but he didn’t say anything.
SAMMS: So . . . .
K.O.: And my Grandma June found out . . . every time we get caught, he’s
the one that asks me.
SAMMS: Okay. So help me understand. You said, “[A.G.H.] used to do it,
too?” Like somebody was doing it to him, or he was doing it to
someone else, or . . . .
K.O.: He was doing it to me.
SAMMS: To you. Okay. And then you said, “Every time you got caught . . . .”
Tell me what you mean by that.
K.O.: They were asking me why I did it whenever I didn’t.
SAMMS: Oh. Who was asking you that?
K.O.: Um [long pause]. What I said I meant by that is that [long pause] . . . .
SAMMS: Who was it that would catch you?
K.O.: My Grandma June.
¶8 At the evidentiary hearing in January 2019, A.G.H. and K.O. testified regarding the
statements K.O. made during the February 2013 forensic interview. A.G.H. testified that
he never sexually assaulted or had sexual intercourse with K.O., but they had consensually
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played “doctor” as children where he touched “maybe her stomach area” and “maybe her
chest.” K.O. testified, “We both used to play doctor all the time because of the fact . . . I
wanted to be a doctor, and I don’t remember exactly, but I think he did too. Nothing sexual
ever happened.” When asked to clarify her statement during the interview that A.G.H. “did
things like what Grandpa did,” K.O. replied, “I didn’t know what intercourse was at that
time. I didn’t know that that was not intercourse.” Upon being asked, “So you thought
that the things A.G.H. did were the same things that your grandfather did?” K.O.
responded, “Yes. But I no longer think that.”
¶9 At trial, K.O. testified in detail about the abuse she experienced at the hands of her
grandfather. K.O. described the “game” where Hansen made her run around in the dark
living room naked and afterwards, he would touch her vagina. She described that Hansen
repeatedly touched her vagina, both over and under her clothes, and that the abuse
happened “more than 50 times.” She described where the abuse occurred in Hansen’s
home, and an incident that occurred in Hansen’s truck. K.O. testified, “I was being
basically dry humped,” meaning Hansen rubbed his penis on K.O. while she sat on his lap.
She described Hansen’s threat, “Don’t say anything or I’ll get in trouble.” She testified
that although she did not remember Hansen raping her, she did remember reporting the
incident during the February 2013 forensic interview (“I just remember saying it. I don’t
remember the actual story.”). She also testified that during the February 2013 forensic
interview, “I was being as honest as I possibly could.”
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STANDARDS OF REVIEW
¶10 We review evidentiary rulings for an abuse of discretion, which occurs “when a
district court acts arbitrarily without conscientious judgment or exceeds the bounds of
reason, resulting in substantial injustice.” State v. Daffin, 2017 MT 76, ¶ 12,
387 Mont.
154,
392 P.3d 150. To the extent a court’s evidentiary ruling is based on an interpretation
of a constitutional right, our review is de novo. State v. Hoff,
2016 MT 244, ¶ 11,
385
Mont. 85,
385 P.3d 945 (citing State v. Patterson,
2012 MT 282, ¶ 10,
367 Mont. 186,
291
P.3d 556).
DISCUSSION
Whether the District Court erred excluding evidence of the complaining witness’s prior
statements regarding an alleged “false accusation” of sexual assault.
¶11 The Due Process Clause of the Fourteenth Amendment and the Compulsory Process
and Confrontation clauses of the Sixth Amendment “guarantee[] criminal defendants ‘a
meaningful opportunity to present a complete defense.’” State v. Jay, 2013 MT 79, ¶ 32,
369 Mont. 332,
298 P.3d 396 (quoting Holmes v. S.C.,
547 U.S. 319, 324,
126 S. Ct. 1727,
1731 (2006)). While states have broad latitude to establish rules excluding evidence from
criminal trials, courts should avoid rules of evidence that abrogate the rights of a criminal
defendant—those that “infring[e] upon a weighty interest of the accused” and are
“arbitrary” or “disproportionate to the purposes they are designed to serve.” United States
v. Scheffer,
523 U.S. 303, 308,
118 S. Ct. 1261, 1264 (1998)); Holmes,
547 U.S. at 324,
125 S. Ct. at 1731.
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¶12 One such rule of evidence is Montana’s rape shield statute, which provides that
“[e]vidence concerning the sexual conduct of the victim is inadmissible” unless it is
evidence of the victim’s past sexual conduct “with the offender” or to show the “origin of
semen, pregnancy, or disease which is at issue in the prosecution.” Section 45-5-511(2),
MCA. We have considered the impact of the rape shield statute on a defendant’s
constitutional rights and found it serves a compelling state interest in preventing rape trials
from becoming trials on the prior sexual conduct of the victims. Mazurek, 277 Mont. at
354-55,
922 P.2d at 478 (quoting State v. Steffes,
269 Mont. 214, 230,
887 P.2d 1196, 1206
(1994) (“The rape shield statute has been upheld as a legitimate interest justifying
curtailment of the constitutional right to confront witnesses.”)).
¶13 There are two further exceptions to the rape shield statute where the policy of
protecting against the trial becoming a trial of the victim “is not violated or circumvented.”
State v. Colburn,
2016 MT 41, ¶ 44,
382 Mont. 223,
366 P.3d 258 (J. McKinnon,
concurring). First, evidence related to a victim’s prior false accusations of sexual assault
may be admitted if the offered evidence can be “narrowed to the issue of the complaining
witness’ veracity.” State v. Anderson,
211 Mont. 272, 284,
686 P.2d 193, 200 (1984).
Second, evidence of the victim’s sexual conduct may be admissible if it is “probative of
the witness’ state of mind, motive, or biases with respect to making the more current
accusations.” Anderson,
211 Mont. at 283,
686 P.2d at 199.
¶14 Neither the rape shield statute nor a criminal defendant’s constitutional rights are
absolute. Colburn, ¶ 25 (citing State v. MacKinnon,
1998 MT 78, ¶ 33,
288 Mont. 329,
957 P.2d 23; State v. Johnson,
1998 MT 107, ¶¶ 22-23,
288 Mont. 513,
958 P.2d 1182).
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We have held that “limiting or barring a defendant’s cross-examination of a complaining
witness in a sex crime case where there is evidence of prior false accusations restricts [a]
defendant’s enjoyment of the worth of his constitutional rights to confront
witnesses.” Mazurek, 277 Mont. at 358,
922 P.2d at 479 (quoting Anderson,
211 Mont. at
284,
686 P.2d at 200). When the rape shield conflicts with a defendant’s constitutional
rights, the court must balance the defendant’s right to present a defense and the victim’s
interests under the statute. Colburn, ¶ 25 (citing State v. Lindberg,
2008 MT 389, ¶ 53,
347 Mont. 76,
196 P.3d 1252). As such, the rape shield should not be applied “arbitrarily
or mechanistically.” State v. Awbery,
2016 MT 48, ¶ 20,
382 Mont. 334,
367 P.3d 346
(citations omitted).
¶15 A court may only admit evidence of prior accusations of sexual abuse if the court
first determines: (1) the accusations were in fact made; (2) the accusations were in fact
false; and (3) the evidence is more probative than prejudicial. Mazurek,
277 Mont. at 358,
922 P.2d at 480 (citing Miller v. State,
779 P.2d 87, 90 (Nev. 1989)). The trial court must
order a hearing outside the presence of the jury to determine whether the evidence is
admissible based on the above criteria. Mazurek,
277 Mont. at 358,
922 P.2d at 480.
¶16 On appeal, Hansen argues his right to a meaningful opportunity to present a
complete defense was inhibited when the District Court prevented admission of evidence
of K.O.’s statements regarding A.G.H. during the February 2013 forensic interview.
Hansen asserts K.O.’s statements were necessary to rebut the State’s evidence, which
included the video footage of K.O.’s accusations of Hansen in the same interview, to show
that she was confused and making false statements. The State argues the District Court,
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following the proper procedure under Mazurek, did not abuse its discretion when it found
Hansen had not established either that K.O. made an accusation or that it was false. The
State further argues that the prejudice of creating a trial within a trial about alleged sexual
conduct of two five-year-old children far outweighed any minimal probative value.
¶17 The first prong of Mazurek requires the defendant to prove by a preponderance of
the evidence that the victim made an accusation about a third party. To meet the burden of
proof, the defendant must provide “independent competent evidence” to show that the
victim “actually made” a sexual allegation against a third party. See St. Germain v. State,
2012 MT 86, ¶ 57,
364 Mont. 494,
276 P.3d 886 (holding the defendant failed to meet his
burden of proof by only providing a letter from the victim’s doctor stating her father
“might have molested her in her sleep,” but not that he did in fact molest her). Speculative
or unsupported evidence of allegations are insufficient to “tip the scales in favor of a
defendant’s right to present a defense and against the victim’s rights under the rape shield
statute.” Lindberg, ¶ 56 (quoting Johnson, ¶ 24).
¶18 The second prong requires that the accusation be “in fact false.” Mazurek,
277
Mont. at 358,
922 P.2d at 480. This means the accusations must be adjudicated or admitted
by the victim to be false. Hoff, ¶ 24. For the purposes of a Mazurek hearing, “adjudicated”
does not necessarily mean a court has previously heard evidence and rendered a final
judgment on the accusation, but rather, if the defendant has provided sufficient evidence
during the Mazurek hearing, the court may adjudicate the falsehood of a previous
accusation. Hoff, ¶ 24.
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¶19 The District Court concluded after careful review of the forensic interview and
testimony at the Mazurek hearing that Hansen failed to prove by a preponderance of the
evidence that “an accusation in the first instance was made or that a false accusation was
made against [A.G.H.].” The court followed the procedures set out in Mazurek. We will
overturn a district court’s decision only if we find an abuse of discretion. Hoff, ¶ 28. In
this case, the evidence that K.O. made an accusation comes solely from the February 2013
forensic interview. The transcript reflects a child unclearly recounting incidents with
another child. From the transcript and the testimony at the Mazurek hearing, what exactly
K.O. asserted happened between her and A.G.H. is unclear. K.O. was eight years old at
the time of the forensic interview, and she testified at the Mazurek hearing that “sleeping
with” A.G.H. did not mean sexual intercourse because she did not know what that phrase
meant in a sexual context in 2013. There is no other evidence in the record that clarifies
what K.O. meant when she stated “[A.G.H.] used to do what Grandpa did, but he didn’t
say anything.” The District Court did not abuse its discretion in determining Hansen failed
to meet his burden of proof that K.O. made an accusation of sexual abuse against A.G.H.
¶20 Even if we assume K.O.’s statements in the interview constituted accusations
against A.G.H., there was no clear evidence that those incidents did or did not happen.
Both K.O. and A.G.H. recall playing “doctor” but adamantly deny any improper sexual
contact. If what K.O. “accused” A.G.H. of was simply touching her stomach while playing
doctor or sleeping next to each other during overnight sleepovers at Hansen’s home, then
it is unclear if her allegations were in fact false. Hansen’s proffered evidence of K.O.’s
statements about A.G.H. requires speculation both as to whether an accusation was made
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and whether K.O.’s “accusations” were false. The record before us does not demonstrate
that the District Court “exceeded the bounds of reason or acted without conscientious
judgment.” Hoff, ¶ 28. The District Court did not abuse its discretion in finding Hansen
failed to establish the first two prongs of the Mazurek test by a preponderance of the
evidence.
¶21 Finally, even if the first two prongs of the Mazurek test were not met, the probative
value of K.O.’s statements is extremely limited. Hansen asserts that K.O.’s testimony was
“shaky” and that she did not remember any of the alleged abuse but only remembered
recounting the story during the February 2013 forensic interview. Not only is that a
mischaracterization of K.O.’s testimony at trial, in which she recounted in detail the sexual
abuse she suffered “more than 50 times,” the only episode of abuse K.O. could not recall
was from her allegation of sexual intercourse without consent. Her “allegations” regarding
A.G.H., on the other hand, involved two five-year-old children who certainly did not have
the vocabulary or experience to discern whether “playing doctor” or “sleeping together”
amounted to sexual assault. Under these circumstances, the proffered evidence would not
have been probative of K.O.’s veracity, but would have required a trial within a trial, the
exact type of probe into K.O.’s past sexual conduct that is protected by the rape shield
statute. See State v. Walker, 2018 MT 312, ¶ 59,
394 Mont. 1,
433 P.3d 202.
¶22 The District Court performed a thorough inquiry and appropriately balanced K.O.’s
rights under the rape shield statute with Hansen’s constitutional rights. See Walker, ¶ 58.
The District Court diligently considered the evidence at issue and weighed the parties’
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competing interests. The District Court did not abuse its discretion by excluding evidence
of K.O.’s statements regarding A.G.H.
CONCLUSION
¶23 The District Court did not abuse its discretion by granting the State’s motion in
limine as to K.O.’s prior statements about A.G.H. This ruling did not violate Hansen’s
constitutional right to present a defense or confront his accuser. Hansen’s conviction is
affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ JIM RICE
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