DA 11 - 0477 IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 166 KINGSLEY ARIEGWE, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. DDV - 08 - 1227( a) Honorable Thomas M. McKittrick, Presiding Judge COUNSEL OF RECORD:

For Appellant: Wade M. Zolynski, Chief Appellate Defender, Garrett R. Norcott , Assistant Appe llate Defender, Helena, Montana For Appellee: Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: May 30, 2012

Decided: August 9, 2012 Filed:

__________________________________________ Clerk August 9 20122

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Kingsley Ariegwe (Ariegwe) appeals from the Findings of Fact, Conclusions of Law, and Order (Order) entered by the EighthJudicial District Court of CascadeCounty, Montana , d enying his p etition for p ost c onviction relief (PCR) . ¶2 We affirm. **ISSUE S**  ¶3 The dispositive issue on appeal is : ¶4 Did the District Court err when it denied Ariegwe’s claim of ineffective a ssistance of counsel ? **FACTUAL AND PROCEDURAL BACKGROUND** ¶5 On January 15, 2003, Ariegwe, age 35, virtually met a 15 - year- old female , K.M., in an Internet chat room. After chatting online and looking at her online profile, which includedK .M.’s picture anda ge, Ariegwe ga ve K.M. his phone number. K.M. called Ariegwe, and o n January 17, 2003, the two of them met in person and analleged sexual encounter occurred. Shortly after the incident K.M. called her friend R.K. to tell her about it, stating

tha t she had had sex

with a 32 - year- old man. U nknown to either of the girls, the phone conversation was inadvertently recorded on an answering ma chine at R.K.’s house. The tape of the conversation was preserved and is at issue in this appeal. ¶6 Ariegwe was charg ed with sexual interco urse without consent, a felony in violation of § 45 - 5 - 503, MCA (2001), attempted sexual intercourse without consent, a felony in violation of §§ 45 - 4 - 103 and 45 - 5 - 503, MCA (2001), and unlawful transactions with children, a misdemeanor in violation of § 45 - 5 - 623(1)(c), MCA (2001). A jury trial3

was held in early March 2004, at which Dr. Janet Merrill (Dr. Merrill), a licensed psychologistw

ho hadexamined K.M. , testified on behalf of the Statewithout objection from Ariegwe’s counsel . ¶7 During his opening statement , Ariegwe’s counsel told the jury about the taped conversation between the girls and implied that the jury would get to listen to the recording of itduring trial . However, defense counsel never offered the tape into ev idence . He later noted the omission in his closing statement . ¶8 On March4 , 2 004, Ariegwewas convicted of attempted sexual intercourse without consent and unlawful transactions with a minor , and acquitted of sexual intercourse without consent. State v. Ariegwe , 2007 MT 204, ¶ 13, 338 Mont. 442, 167 P.3d 815. Ariegwe appealed the conviction and sentence, and this Court affirmed the conviction and rev

ersed and remanded the restitution portion of the sentence. Ariegwe , ¶¶ 1, 182. ¶9 Through counsel, Ariegwe petit ioned for PCR , raising several arg uments. Those presented for appeal are whether Ariegwereceived ineffective assistance of c ounsel (IAC) when his trial counsel failed to object to thetestimony of Dr. Merrill andf ailed to introduce into evidence the rec orded conversation between K.M. and R.K. ¶10 An ev

identiary hearing on Ariegwe’s PCR petition was held on March 17, 2011 . At the hearing, both parties were represented by counsel and presented evidence, including the testimony of Ariegwe’s trial counsel. After the hearing, the court requested submission of the recorded phone conversationand listened to it . On June 29, 2011, t he District Court issued the Order denying A riegwe’s petition for PCR . The court4

determined that Ariegwe was not prejudiced by his counsel’s failure to object to Dr. Merrill’sexpert testimony or failure to introduce the recorded conversationinto evidence . ¶11 Ariegwe appeals. **STANDARD OF REVIEW** ¶12 “[ This Court ] rev iew [ s ] ad istrict court’s denial of a petition for postconviction relief to determine whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Miller v. State , 2012 MT 131, ¶ 9, 365 Mont. 264 , ___ P.3d ___ ( quoting Hammer v. State , 2008 MT 342, ¶ 9, 346 Mont. 279, 194 P.3d 699). “A petitioner for post - conviction relief must prov e by a preponderance of ev idence that he or she is entitled to relief.” Miller , ¶ 14 (quoting Rogers v. State , 2011 MT 105, ¶ 15, 360 Mont. 334, 253 P.3d 889 ) . ¶13 “I neffective assistance of co unsel claims are mixed questions of law and fact [which this Court reviews] de novo . ” Mi ller , ¶ 9 (citing Whitlow v. State , 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861). **DISCUSSION** ¶14 Issue: Did the District Court err when it denied Ariegwe’s claim of in effective assis tance of counsel? ¶15 Under the Sixth and Fourteenth Amendments to the UnitedStates Constitution and under Article II, Section24 of the Montana Constitution, the right to counsel in criminal prosecutionsi s guaranteed. Mi ller, ¶ 12. “ The right to counsel on appeal includes the right to effective assistance of counsel.” Mi ller , ¶ 12 (citations omitted). C laims of ineffective assistance of counselare reviewed using the two -part test described in5

Strickland v. Washington , 466 U.S. 668 , 104 S . Ct. 2052 ( 1984), where “the defendant must demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced the defendant.” Miller , ¶ 13 ( quoting St. Germain v. State , 2012 MT 86, ¶ 8, 364 Mont. 494, 276 P.3d 886). ¶16 In assessing whether counsel ’ s performance was deficient under the first prong, we “determine wh eth er counsel’s representation fell below an objective standard of reasonablenessc onsidering prev ailing professional norms and all the circumstanc es.” Miller, ¶ 13 (quoting St. Germain , ¶ 10). “Under the second prong, ‘the defendant must show that, but for counsel’s errors, a reasonable probability exists that the result of the proceeding would have been different. A reasonable probability is a p robability sufficient to undermine confidence in the outcome of the proceedings.’ ” Miller , ¶ 13 (quoting St. Germain , ¶ 11)(internal citation omitted) . In order to prevail, the defendant must satisfy both prongs of the Strickland test. Miller , ¶ 13. ¶17 Ariegwe denied there was sexual contact between him and K.M., while K.M. firmly maintained that there was forcible sexual contact, including penetration. Ariegwe asserts that the physical evidence was not conclusive and therefore the case came down to th e credibility of the witnesses. Thus, he arg ues on appeal that histrial counsel was ineffective in failing

to object to Dr. Merrill ’s testimony regarding the credibility of K.M. and fail ing

to introduce into evidence therecorded conversation between K.M . and R.K. The State counterstha

t Ariegwe failed to demonstrate that his counsel was deficient or that he was prejudiced by his counsel’s performance . We review each claim in turn. ¶18 **A. Expert Testimony**6

¶19 Dr. Merrill testified without objection from Ariegwe’s attorney that K.M. suffered from post - traumatic stress disorder and depression, and that her diagnosis was consistent with that of a teenager who had been sexually abused. Ariegwe contendsthat Dr. Merrill ’s testimony

was inadmissible because it in appropriately bolsteredK .M.’s credibility by “plac[ing] an aura of scientific authority” over K.M.’s allegations, when the credibility of thealleged victim should have beenexclusively within the province of the jury . ¶20 We have held that expert testimony concerning the credibility of an alleged victim is generally improper because it invades the province of the jury. State v. Harris , 247 Mont. 405, 409 - 10, 808 P.2d 453, 455 (1991). An exception exists in certain cases involving the sexual abuse of a min or child. Harris , 247 Mont. at 410 , 808 P.2d at 455 . However, we held in State v. Hensley, 250 Mont. 478, 482 , 821 P.2d 1029, 103 1 - 32 (1991), that where an alleged victim wassixteen years of age and competent to testify, it waserror to admit expert testimony regarding the credibility of the alleged victim. Here, K.M. was sixteenyears old and competent when she testified . ¶21 Ariegwe arg

ues that his counsel should have objected to Dr. Merrill’s testimony under Hensley , and that his failure to do so estab lishes that he did not know or understand the law. He contendsthat Dr. Merrill’s testimony should not have been admitted due to the danger of unfair prejudice , and that it bolstered K.M.’s credibility while not providing the jury with any new information . The State arguesthat Dr. Merrill’s testimony did not directly comment on K.M.’s credibility, was not offered to bolster K.M.’s credibility, and7

that no reasonable probability exists that the outcome would have been different had Dr. Merrill not testified. ¶22 Assuming for the sake of arg ument that Dr. Merrill’s testimony concerning the credibility of K.M.’s story was erroneously admitted under Hensley, this does not end the IAC inquiry. Ariegwe’s burden of proof under the Strickland test is two - fold. F irst, Ariegwe must show that his counsel’s performance was deficient. Second, he must show that he was prejudiced by his counsel’s deficient performance, in that a reasonable probability exists that the result of the proceeding would have been different had his counsel objected to Dr. Merrill’s testimony. Miller , ¶ 13. In making this determination, the totality of the evidence before the judge or jury must be considered , as required by Strickland . State v. Wing , 2008 MT 218, ¶ 43 , 344 Mont. 243, 188 P.3d999. ¶23 Ariegwe vigorously arg ues that his lawyer’s performance was deficient, but he does not address the second prong — whether he was prejudiced due to a reasonable probability that the result would have been different had his counsel objected to Dr. Merrill’s testimony . If either prong of the Strickland test is not met, then the IAC inquiry can end. State v. Gunderson , 2010 MT 166 , ¶ 6 8, 357 Mont. 142, 237 P.3d 74. We conclude Ariegwe has failed to satisfy the prejudice prong because we cannot conclude that, but for the failure of Ariegwe’s counsel to object to Dr. Merrill’s testimony, the result of Ariegwe’s trial would have been different. See Wing , ¶ 44. ¶24 The case against Ariegwe was supported by substantial evidencein addition to K.M.’s testimony, including fibers found on K.M.’s underwear from a unique blanket owned by Ariegwe and the presence of amylase on the inside of K.M.’s underwear . This8

ev idence is notable because Ariegwe insisted that K.M.’s pants were nev er removed during their encounter . In addition, photographic ev idence buttressed K.M.’s version of ev ents, as did the testimony of R.K. and K.M. ’s father. M oreover, the jury was still obligated to assess the credibility of K.M., and it had the discretion to accept or reject Dr. Merrill’ s testimony in its entirety . See S tate v. Geyman , 224 Mont. 194, 200 - 01 , 729 P.2d 475, 479 - 80 ( 1986). I

n sum, Ariegwe has not demonstratedthat without Dr. Merrill’s testimony, there is a reasonable probability that the result would have been different. This being so, we decline to further address the deficiency prong of the Strickland test or the propriety

of Dr. Merrill’s testimony. ¶25 We conclude that the D istrict C ourt did not err in concluding that Ariegwe was not prejudiced by his counsel’s failure to object to Dr. Merrill’s testimony. ¶26 **B. Recorded Conversation** ¶27 As noted above, counsel for Ariegwe told the jury in his opening statement that it would hear the tape - recorded conversation between K.M. and her friend R.K. However, he forgot to introduc e the tape into evidence, and ended up discussing the omission during his closing argument. He later testified at the PCR hearing that the tape had been important to his case strategy, as he had wanted to use K.M.’s voice inflections on the tape to attack her

credibility. ¶28 Ariegwe arg

ues on appeal that the District Court erred in denying hisc laim for IAC for counsel’s fa ilure to introduce the recorded conversation into evidence . He ma intains that K.M.’s inflection on the tape as she described the allege d sexual encounter to R. K. was enthusiastic and boastful. Ariegwe posits she made up the story to enhance9

her stature, and that when the answering machine tape was discovered, she became locked into her false story. Ariegwe claims that it was important that the jury hear the recorded conversation, as it would have assisted itin assessing K.M.’s credibility. ¶29 After listening to the recorded conversationduring the PCR proceedings , the District Court determined that Ariegwe was not prejudiced by the failure to introduce the recording into evidence , given itsc ontent and poor audio quality . The S tate examined both K.M. and R.K. about the phone conversation, and Ariegwe’s counsel had the full opportunity to cross - examine both of them. I n addition, the court concluded that the recorded conversation was potentially inculpatory rather than exculpatory b ecause in it K.M. stated that she had had sex with a man and that it was not supposed to happen. If anything, these nearly contemporaneous statements undersco red K.M.’s testimony that the sexual encounter had actually occurred . The court notedthat had the recorded conversation been introducedt o the jury, Ariegwe ma y well have been convicted of sexual intercourse without consent , rather than being acquitted o f the charge. The court therefore foundthat counsel’s error in not introducing the recorded conversation into ev idence did not undermine confidence in the out come of the trial. ¶30 We ag

ree with the District Court. Ariegwe has not demonstrated that but for his counsel’s failure to introduce the tape as intended, a reasonable probability existed that the result of the proceeding would have been different

—or more favorable

—to him. **CONCLUSION** ¶31 For the foregoing reasons, we conclude that the District Court didnot err when it denied Ariegwe’s claim of IAC . The District Court’s findings of f act are not clearly10

erroneous and its conclusions of law are correct . We therefore affirm the denial and dismissal of Ariegwe’s petition for PCR . /S/ PATRICIA COTTER We concur: /S/ MIKE McGRATH /S/ JAMES C. NELSON /S/ MICHAEL E WHEAT /S/ BETH BAKER