State v. Thompson

September 18 2012
DA 11-0743
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 208STATE OF MONTANA,
Plaintiff and Appellee,
v.
ANTHONY JEROME THOMPSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 10-672
Honorable Ingrid G. Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robin A. Meguire, Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney; Julie Mees, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: July 18, 2012
Decided: September 18, 2012
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Anthony Jerome Thompson (Thompson) appeals from his conviction and sentence for
partner or family member assault, a felony, in the Thirteenth Judicial District, Yellowstone
County. The District Court designated Thompson a persistent felony offender (PFO) and
committed him to the Department of Corrections (DOC) for the statutory minimum period of
five years.
¶2 We review the following issues on appeal:
¶3 Whether the District Court properly excluded evidence that the complaining witness
had a history of a felony forgery charge over a decade before Thompson’s trial.
¶4 Whether the District Court imposed a legal sentence when it sentenced Thompson
to a five-year commitment to the DOC.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Thompson and Debbie Love (Love) were in a relationship for five years. They went
gambling at casinos in Billings, Montana, on December 20, 2010. Thompson’s ex-girlfriend
also happened to be at one of the casinos. Thompson left abruptly after Love questioned the
presence of Thompson’s ex-girlfriend at the casino.
¶6 Love and Thompson returned to Love’s house. Thompson refused to talk about his
ex-girlfriend. Thompson instead tried to initiate sex with Love. Love did not want to have
sex with Thompson. As a result, Thompson held Love down and punched her repeatedly.
Love asked Thompson why he would beat her if he loved her. Thompson stopped punching
Love.
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¶7 Love went to the bathroom to assess her wounds. She discovered that she had a
bloody nose and that her face was swollen. Love cleaned up and returned to sleep in the
same bed as Thompson. Love told Thompson that she would make breakfast when they
woke up the next morning. Love called 911 while noisily washing dishes to prevent
Thompson from hearing the telephone call.
¶8 Police officers arrived at Love’s residence on the morning of December 21, 2010.
Officers photographed Love’s face and noticed bruising and other injuries. The officers
arrested Thompson and took him to the police station.
¶9 The State charged Thompson with felony partner or family member assault in
violation of § 45-5-206, MCA. The State timely filed notice of its intent to request
Thompson’s designation as a PFO. Thompson filed several pretrial evidentiary motions.
One motion requested judicial notice of the court records related to Love’s felony forgery
charge from 2000.
¶10 The District Court ruled that Thompson could not question Love regarding her former
felony forgery charge due to its remoteness in time. The State had charged Love with
forgery more than 10 years before it filed the charges against Thompson. The court further
noted that the State had dismissed the forgery charge pursuant to a pretrial diversion
agreement.
¶11 The jury returned a unanimous guilty verdict at the end of the trial. Thompson filed a
sentencing memorandum in which he argued that § 46-18-502, MCA, did not require the
court to sentence Thompson to the five-year minimum sentence mandated for a PFO.
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Thompson suggested that the exception to the five-year minimum contained in § 46-18-
222(5), MCA, applied to him. Thompson argued that this exception authorized the court to
consider a lesser sentence. The State disagreed.
¶12 The court held a sentencing hearing on September 23, 2011. Thompson requested a
three-year DOC commitment with all of the years suspended. The District Court determined
that Thompson’s PFO status and the threat that he posed to the community supported its
decision to impose the full five-year DOC commitment. Thompson appeals.
STANDARD OF REVIEW
¶13 We review for abuse of discretion a district court’s evidentiary rulings. State v.
Norquay, 2011 MT 34, ¶ 13, 359 Mont. 257, 248 P.3d 817. A district court abuses its
discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of
reason, resulting in a substantial injustice. In re Estate of Hannum, 2012 MT 171, ¶ 18, 366
Mont. 1, ___ P.3d ___. We review for legality only a criminal sentence that imposes more
than one year of incarceration. State v. Habets, 2011 MT 275, ¶ 12, 362 Mont. 406, 264 P.3d
1139.
DISCUSSION
¶14 Whether the District Court properly excluded evidence that the complaining witness
had a history of a felony forgery charge over a decade before Thompson’s trial.
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¶15 Thompson argues that the District Court denied him the right to present a complete
and full defense when it excluded evidence of Love’s decade-old felony forgery charge and
pre-trial diversion agreement. A district court possesses discretion to exclude evidence of a
person’s character for the purpose of proving an action in conformity therewith. M. R. Evid.
404(a). The District Court cited M. R. Evid. 608(b) to support its decision to exclude
evidence of Love’s 2000 felony forgery charge. M. R. Evid. 608(b) provides that a court
possesses the discretion whether to admit specific instances of conduct to show a witness’s
credibility.
¶16 This Court recognizes that forgery indicates dishonesty. State v. Martin, 279 Mont.
185, 200, 926 P.2d 1380, 1390 (1996). Thompson points to our decision in State v. Maier,
1999 MT 51, 293 Mont. 403, 977 P.2d 298, in which this Court determined that a district
court improperly had excluded evidence of a witness’s juvenile forgery conviction. The
Court determined that the specific conduct that surrounded the witness’s forgery conviction
“was probative” of the witness’s character for truthfulness or untruthfulness under M. R.
Evid. 608(b). Maier, ¶ 55. The Court nevertheless affirmed Maier’s conviction in light of
the substantial evidence from which the jury could have concluded that Maier had been the
shooter. Maier, ¶ 56. The Court did not address, however, whether M. R. Evid. 608(b)
allowed a district court to balance other factors to determine admissibility.
¶17 The State merely charged Love with forgery. No jury ever had convicted Love of
forgery. Love entered a pretrial diversion program. The District Court assessed these
extenuating circumstances and the time that had elapsed between her charge in 2000 and the
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trial in 2011. The court concluded that a decade constituted too much time between the
alleged offense and Love’s testimony.
¶18 Exclusionary rules do not reduce a defendant’s right to present a defense so long as
the rules are not arbitrary or disproportionate to their purpose. State v. Johnson, 1998 MT
107, ¶ 22, 288 Mont. 513, 958 P.2d 1182. The court allowed Thompson to present evidence
to attack Love’s credibility. Thompson presented recordings of phone calls from Love in
which Love insinuated that she would help him with the case in exchange for money.
Thompson cross-examined Love regarding her inconsistent statements to police officers
regarding another incident of Thompson’s alleged abuse. The District Court excluded only a
small portion of an otherwise considerable amount of damaging evidence regarding Love’s
credibility.
¶19 Moreover, Love’s testimony alone did not provide the only evidence of the alleged
assault. Police officers photographed Love’s face on the morning after the alleged assault.
The photographs documented bruising and other injuries suffered by Love. These
photographs and the testimony of the investigating officers provided substantial evidence of
Thompson’s assault of Love. Maier, ¶ 56. The court did not abuse its discretion in
excluding Love’s 10-year-old forgery charge based on the remoteness in time of the forgery
charge, not a conviction, and the substantial evidence in the record to support the assault
against Love.
¶20 Whether the District Court imposed a legal sentence when it sentenced Thompson to a
five-year commitment to the DOC.
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¶21 Thompson contends that the court operated under a mistake of law when it imposed
the five-year DOC commitment. Thompson cites this Court’s analysis of the PFO statutes in
State v. Brendal, 2009 MT 236, 351 Mont. 395, 213 P.3d 448. The Court in Brendal
determined that district courts must consider statutory alternatives to the PFO statutes when
justified. The district court in Brendal clearly felt constrained by the PFO statutes. Brendal,
¶ 7. Brendal failed to argue, however, that the PFO exception codified in § 46-18-222,
MCA, applied.
¶22 Section 46-18-502(1), MCA, with few exceptions, requires a court to impose a five-
year minimum sentence at the Montana State Prison for a PFO. Section 46-18-502(3),
MCA, requires, with limited exceptions, that the first five years of a PFO sentence “may not
be deferred or suspended.” Section 46-18-222, MCA, sets forth the circumstances under
which a court may forego these restrictions. In particular, Thompson argues that the District
Court misinterpreted § 46-18-222(5), MCA. Subsection (5) allows a court to forego the
restrictions when the offender inflicted “no serious bodily injury” upon the victim.
¶23 Thompson alleges that the State failed to present evidence that Love suffered “serious
bodily injury” as defined in § 45-2-101(66), MCA. Thompson contends, as a result, that the
statutory exception to a PFO sentence contained in § 46-18-222(5), MCA, should apply. We
need not determine definitely whether the State presented evidence that Love suffered
“serious bodily injury” in light of the fact that the court exercised its discretion under § 46-
18-222(5), MCA, to depart from the mandatory PFO minimum sentence.
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¶24 The court committed Thompson to the DOC rather than sentencing him to five years
“in the state prison” generally required for a PFO by § 46-18-502(1), MCA. The court
followed the statutory exception authorized by § 46-18-222, MCA. The court explained to
Thompson, however, that his “criminal history suggests risk to the community” and
“suggests risk to significant others that [Thompson] might become involved with.” The
court balanced protection to the community and a chance at rehabilitation for Thompson.
The court also acknowledged Thompson’s designation as a PFO.
¶25 The District Court lawfully based its sentence upon Thompson’s likelihood of
reoffending and the court’s desire to rehabilitate him. The court departed from the PFO
statute by committing Thompson to the DOC. The District Court “correctly applied the
applicable statutes” in Thompson’s sentencing. State v. Shults, 2006 MT 100, ¶ 34, 332
Mont. 130, 136 P.3d 507.
¶26 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ BETH BAKER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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