Case Number: 2018MT 213

Judge: Laurie McKinnon

Court: SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General
Kirsten H. Pabst, Missoula County Attorney, Suzy Boylan, Deputy County Attorney

Defendant's Attorney: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender

Description: Goldberg and Weik met in 1982, when Goldberg was approximately sixteen years
oldand Weikwas approximately twenty years old. Goldberg and Weik had what Goldberg
described as a short, teenage romance. In the following decades, Goldberg and Weik kept
inintermittentcontact. In 2011, Weik and Goldberg, then adivorced mother of three adult
children, reconnected and developed a romantic relationship again. Goldberg ended the
romantic aspect of their relationship, but the two remained friendly and talked about
moving to Montana and startinga horse therapy businesstogether.
¶3 In 2012, Goldberg moved to Montana, began working, and met Frank Broad, whom
she began dating. Weik also moved to Montana, and Weik and Goldberg leased a house
togetherbeginning in October 2012. In December 2013, Goldberg moved out of the house
she sharedwith Weik and into Broad’s house. Goldberg moved because Weik was moody,
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he still seemed to be interested in having a romantic relationship with her, and she noticed
he was removing her personal belongings, including hair from her hairbrush. Goldberg
also noticed her passport was missingwhen she moved out.
¶4 After moving, Goldberg attempted to cut off contact with Weik, but she felt as
though Weik was watching and following her. Goldberg frequently saw Weik while she
drove,at the grocery store, and at the post office. Goldberg petitioned the justice courtfor
a temporary order of protection against Weik. In April 2014, the justice court issued a
temporary order of protection prohibiting Weik from entering within 1500 feet of
Goldberg, Goldberg and Broad’s house, and Goldberg’s sister’s house. The order also
prohibitedWeik from communicating with Goldberg. The justice courtlater extended the
length of the protective order, and the protective order eventually became permanent.
Despite the protective order, Goldberg was uncomfortable when alone and fearful in public
settings.
¶5 While the protective order was in place, Weik entereda restaurant where Goldberg
and Broad were seated at a bar and sat downin a barstool directlynext to Goldberg. Weik
apparently noticed Goldberg and moved to a seat across the restaurant from Goldberg but
continued to stare ather. Goldberg contacted the policeandWeikwas later convicted for
misdemeanor violation of a protective order. As part of his sentence, Weik served
probation and worea GPS monitoring device.
¶6 In further violation of the protective order, Weik: (1) sent Goldberg a letter;
(2) called her; (3) entered within 1500 feet of Goldberg at a grocery store; (4) entered
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within 1500 feet of Goldberg at a different store; (5) entered within 1500 feet of Goldberg’s
sister’s house; and(6) entered within 1500 feet of Goldberg while she retrieved mail from
her post office box at the post office. At the time, Goldberg held post office box number
16291. According to a post office employee, Weik inquired about renting post office box
16191, the box directly adjacent to Goldberg’s. Box 16191 was unavailable, but Weik
continued asking about its availability and eventually rented it. The letter Weik sent
Goldberg was a copy of a civil lawsuit he filed against Goldberg, Goldberg’s sister, and
Broadin federal court. Goldberg hired an attorney and the federal court dismissed Weik’s
civil suit. Next, Weik filed a similar civil lawsuitagainst Goldberg, Goldberg’s sister, and
Broad in state district court. Goldberg hired a different attorney and the district court
dismissed Weik’s second civil suit.
¶7 As a result of Weik’s protective orderviolations, the State charged Weik with felony
stalking and the case proceeded to a jury trialin February 2016. At trial, Goldberg testified
at length about her relationship with Weik during the approximately thirty-three years since
they met. Before trial and at the beginning oftrial, Weik complained he was unableto see
Goldbergduring her testimony because of the location of his seat atthe defense table and
the size and shape of the courtroom. The District Court suggested rearrangingthe furniture
in the “cramped” courtroom to enhance Weik’s sightline but was unable to satisfy Weik
with an arrangement. The District Court attempted to change courtrooms but was unable
to do so. Weik asked to sit at the table the State typically occupies because it is directly
opposite the witness stand, but the State argued it needed that table because it contained a
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specific portal for accessing the computer network. Further, the State argued it would be
detrimental to Goldberg to be very close to Weik while she testified. During a discussion
between the parties and the District Courtabout the courtroom’sconfiguration, the Bailiff
interjected and explainedthe defense table in that courtroomis considered the safestplace
for defendants and the most convenientfor security personnel. Alternatively, Weikasked
if he could leave his seat during Goldberg’s testimony and move around the courtroom to
get a better view of her. The District Court refused to allow Weik to exchange tables with
the State or move around the room.
¶8 At trial, the State presented evidence froma probationary search of Weik’s storage
unit. Weik’s probation officer found photocopies of several of Goldberg’s personal
documents, includingherpassport,social security card, birth certificate, credit report, and
an airplane ticket with her name on it. Weik’s probation officer also found two bags of
Goldberg’s hair. Goldberg assistedina subsequent search of Weik’s storage unit and shed
and recovered a large amount of her personal property, including: her purse, flowerpot,
books, horse blankets, coffee cups, and clothing; her granddaughter’s socks, clothing,
tricycle, and stuffed animal; discarded packaging from her facial lotions; discarded
wrapping paper and a wine bottle from her family’s Christmas celebration in 2013; and her
son’s belt buckle. Additionally, Goldberg recovered photographs of herself and her vehicle
and printed-outimages of herprofessional website andsocial media page.
¶9 The State also presented evidence that, because of her fear of Weik, Goldberg
purchased a home security system, slept with a gun, placed mace in her car and purse,
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placed bear spray at each of her home’s doors, and sought therapy. Goldberg began taking
medications for anxiety, depression, and insomnia. Additionally, Goldberg suffered
headaches, heightened blood pressure, nightmares, stress, and stress-induced shingles,
which necessitated hospitalization and a prolonged absence from work. Broad testified
and described Goldberg’s personality and lifestyle changing during this time—Goldberg
became reclusive, distraught, nervous, and frightened. Broad described trying to surprise
Goldberg by coming home early. Instead of the happy surprise he intended, Broad
inadvertently scared Goldberg by entering the house unannounced. Goldberg met Broad
in the hallway witha gunpointed at him. Goldberg vomited after realizing the intruder she
imagined was actually her boyfriend, Broad. Goldberg’s sister testified and agreed with
Broad’s description of Goldberg’s personality and lifestyle changes, stating, “I think she’s
progressively gotten worseover time.”
¶10 The jury found Weik guilty of stalking Goldberg and the District Court held a
sentencing hearing. At the hearing, Goldberg submitted exhibits and testified in support
of her amended restitution request, providing details about the expenses she incurred.
Goldberg claimed that,because of Weik, she incurred legal expenses defending against the
two civil lawsuits he filed against her, medical expenses, lost wages and health insurance
expenses during her prolonged absence from work, the expense of replacing her passport,
and lost wages due to trial preparation and participation. After the hearing and post-hearing
briefing, the District Court ordered Weik to pay $42,264.06 in restitution. This figure
reflected Goldberg’s amended restitutionrequest, lessanamount Goldberg claimed for lost
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wages due to trial preparation and participation ($516.92), which the District Court
determined was not compensable as restitution. Later, the District Court entered a final,
written judgment sentencing Weik to five years commitment in the Montana State Prison
with two years suspended and restitution totaling $42,798.80, the amount Goldberg
initially requested prior to amending her request. Weik appeals.
STANDARDSOF REVIEW ¶11 We review constitutional questions, including questions concerning the right to
confrontation, de novo. State v. Stock, 2011 MT 131, ¶ 16, 361 Mont. 1, 256 P.3d 899
(citing State v. Norquay, 2011 MT 34, ¶ 13, 359 Mont. 257, 248 P.3d 817). What
constitutes an appropriate measure of restitution is a question of law that we review to
determine whether the district court’s interpretation of the law is correct. State v.
Passwater, 2015 MT 159, ¶ 9, 379 Mont. 372, 350 P.3d 382 (citing State v. Aragon,
2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841). In relation to a restitution award, we
review a court’s factual findings for clear error. Passwater, ¶ 9 (quoting Aragon, ¶ 9). A
finding is clearly erroneous if it is not supported by substantial evidence, if the court
misapprehended the effect of the evidence, orifour review of the record convinces us that
the court made a mistake. Passwater, ¶ 9 (quoting Aragon, ¶ 9). Substantial evidence is
evidence that a reasonable mind might accept as adequate to support a conclusion; it is
“more than a mere scintilla of evidence, but may be somewhat less than a preponderance.”
Passwater, ¶ 9 (quoting Aragon, ¶ 9).
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DISCUSSION ¶12 1. Did Weik’s trial violate his right to confrontation because he could not see Goldberg during her testimony?
¶13 Our caselaw distinguishes Article II, Section 24,of the Montana Constitution from
the Sixth Amendment of the United States Constitution, which both afford a criminal
defendant the right to confront witnesses against him. See Stock, ¶ 28. The Confrontation
Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. The “primary purpose” of the
Confrontation Clause “is to ‘ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary proceeding’
through a combination of elements of confrontation.” Stock, ¶ 23 (quoting Maryland v.
Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163 (1990)). The elements of confrontation
include: (1) physical presence of the witness; (2) testimony under oath;
(3)cross-examination of the witness; and (4) observation of the witness’sdemeanor by the
trier of fact. Stock, ¶23 (citing Craig, 497 U.S. at 845–46, 110 S. Ct. at 3163). The right
to confrontation is a fundamental right, but the right is not recognized as an “‘absolute
rightto a face-to-face meeting with witnesses against them at trial.’” Stock, ¶23 (quoting
Craig, 497 U.S. at 844, 110 S. Ct. at 3162–63). For example, “the [Confrontation] Clause
permits, where necessary, the admission of certain hearsay statements against a defendant
despite the defendant’s inability to confront the declarant at trial.” Craig, 497 U.S. at
847–48, 110 S. Ct. at 3164.
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¶14 Consistent with the United States Constitution, Montana’s Confrontation Clause
provides that “[i]n all criminal prosecutions the accused shall have the right . . . to meet the
witnesses against him face to face.” Mont. Const. art. II, § 24. Primarily, Montana’s
Confrontation Clause guarantees criminal defendants the right to cross-examine witnesses.
Stock, ¶ 29. Cross-examination “produces truth” because it allows the trier of fact to
judge the witness’s credibility by evaluatinghis or her demeanor, body language, and level
of hesitance in relation to his or her testimony. Stock, ¶ 29. Although we recognize
Montana’s Confrontation Clause affords broader protections than its federal counterpart
and includes the express term “face to face,” we have also held that it does not always
require literal face-to-face confrontation between a defendant and witness. Stock,¶28.
¶15 Instead of requiring literal face-to-face confrontation, in City of Missoula v. Duane,
2015 MT 232, ¶ 25, 380 Mont. 290, 355 P.3d 729, while recognizing a preference for
“personal presence of the witness in the courtroom,” we held that testimony facilitated by
the program Skype, a two-way audio and video technology, satisfied the hallmarks of
confrontation. There, the record indicated thecourt easily made theSkypeconnection, the
witness took an oath, the witness could hear and see the court and the jury could hear and
see her, and counsel examined and cross-examined the witness without complication or
technical difficulty. Duane, ¶ 19. Again, in State v. Davis, 253 Mont. 50, 58,
830 P.2d 1309, 1315 (1992), we held utilizing an opaque screen as a sightline barrier
between child abuse victims and the defendant did not violate the defendant’s Sixth
Amendment confrontation right because the witnesses were physically present in the
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courtroom; the witnesses took an oath; the defendant’s counsel cross-examined the
witnesses; and the jury could see the witnesses’ demeanors. Further, although a screen
blocked the defendant’s view, the judge, the State’s counsel, and the defendant’s counsel
could all see the witnesses. Davis, 253 Mont. at 54, 830 P.2d at 1312.
¶16 Weik argues his “confrontation rights entitle[d] him to ‘literal’ face-to-face
confrontation” withGoldberg during her testimony. Further, Weik argues “prohibiting him
from seeing Ms. Goldberg during her testimony undermined the reliability of her
testimony.” Weik does not argue or mention whether he was unable to see the seven other
witnesses besides Goldberg who testified during his trial. The State responds by arguing
that it took no affirmative action to inhibit or proscribe Weik’s view of Goldberg; itdid not
request to reposition the witness stand, erect a privacy screen, or ask to present Goldberg’s
testimony by Skype. Instead, the State argues Weik’s trial met the elements of
confrontation because Goldberg was physically present in the courtroom, took an oath,
Weik’s counsel cross-examined her, and the jury could see her. Further, the state notes
thatGoldberg could presumablysee Weik because sheidentified Weikforthe jury during
her testimony. The State reasons that if Goldberg could see and identify Weik while
testifying, Weik could see herin return.
¶17 Prior to trial, the parties discussed the courtroom’s configuration. The District Court
informed the parties that other courtrooms were unavailable due to other proceedings.
Referring tothe defense table, the court stated, “I think Mr. Weik could be put as far to the
end of that table as possible, you know, during the testimony of the victim. So I believe
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that he will be able to see the victim from that angle.” Thereafter the parties selected a jury
and Goldberg took the witness stand.
¶18 As soon as Goldberg took the witness stand, the parties discussed the courtroom’s
configuration again outside the presence of the jury. Weik’s counsel, Christopher Daly,
explainedthat Weik and his co-counsel, Susan Boyer,could not see Goldberg “at all”from
their positions seated at the defense table. The District Court granted Boyer “the
opportunity to move around the courtroom,” but would not allow Weik to do the same,
noting Weik would have to remain seated because he was “an incarcerated Defendant.”
The District Court suggested bringing in an additional lectern to better accommodate
Boyer. Goldberg resumed testifying and, after the District Court excused the jury at the
end of the first day, the parties discussed the courtroom’s configuration for a third time:
THE COURT: I realize that the arrangements were not what defense counsel wanted. But, I mean, you can, obviously, try to get some kind of furniture that you think would work better in the corner. You know what we’ve got to work with. So you’ve got a little bit of time to do that between now and Tuesday morning, if you want. As long as it fits there, I don’t care. MS. BOYER: It’s not so much the furniture. It’s having to peek around Suzy to even see the witness. MS. [SUZY] BOYLAN: I thought there was a clearer view. I can certainly move over a little bit. THE COURT: If you want -- I mean, certainly Ms. Boylan could move the lectern to right in front of your chair because you’re not in the chair.
After this interaction, Goldberg testified on two additional days of Weik’s trial, and the
record does not indicate whether the parties made any changes to the courtroom’s
configuration. Weik did not raise any further concern about not being able see Goldberg
during the second or third day of trial.
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¶19 Instead, the record indicates that, during the second and third day of trial, three
witnesses, including Goldberg,identifiedWeik from the witness stand by indicating to the
jury where he was sitting. The State’s counsel,Boylan,asked Goldberg:
Q. So, Thresa, is the person who committed the acts of stalking you’ve described in the courtroom today? [Witness Goldberg] A. Yes. Q.And would you tell the jury where he’s sitting. A. Over there, with the gray suit and blue shirt. THECOURT: The record will reflect she’s identified the defendant.
The State’s counsel, Christopher Betchie, asked Matt Kazinsky, a City of Missoula police
officer:
Q. And have you had any interactions with the defendant? [Witness Kazinsky] A. I have. Q. And -THE COURT: The record will reflect he’s identified the defendant. You may continue.
Finally, Betchie asked Sally Korn, a post office employee:
Q. Okay. And have you met the defendant David Weik? [Witness Korn] A. Yes, I have. Q. Okay. And do you recognize him in the courtroom today? A. Yes, I do. THE COURT: The record will reflect her identification of the defendant.
We concludeWeik could see Goldberg while she testifiedduring the second and third day
of his trialbecause multiple witnesses on the witness stand, including Goldberg, could see
Weik and pointed him out to the jury. Goldberg was also able to describe what he was
wearing. Further, Weik did not complain during the second or third day of trialthat he was
unable to seeGoldbergwhile she testified.
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¶20 Even though it is apparent Weik could see Goldberg during the majority of her
testimony, it is also apparent that he wanted a better, closer, and more direct view. The
District Court patiently and diligently attempted to adjust and accommodate Weik’s
requests for a better view. Itoffered to rearrange the furniture and allowed Wiek’s counsel
to move around the courtroom. It also allowed Weik to sit in whatever seat at the defense
table he felt had the best view and to movehis seat as far to one end of the table as possible.
The District Court attempted to change courtrooms, but no other courtroom was available.
The District Court considered Weik’s request to exchange tables with the State, but, after
the State argued it could only access its computer network from the State’s table and the
Bailiff suggested the defense table was safest and most convenient,declined to do so.
¶21 Consistent withthe elements of confrontation: (1)Goldberg was physically present
in the courtroom; (2) Goldberg took an oath to testify truthfully; (3) Weik’s counsel
cross-examined Goldberg; and (4) the jury observed Goldberg throughout her testimony.
See Stock, ¶ 23 (citing Craig, 497 U.S. at 845–46, 110 S. Ct. at 3163). The jury’s
observation enabled it to judge Goldberg’s credibility by evaluating her demeanor, body
language, and level of hesitance in relation to her testimony. Weik’s trial satisfied the
elements of confrontation. See Stock, ¶ 29. Even under Montana’s heightened “face to
face” guarantee, the elements do not afford Weik the right to be directly across from his
alleged stalking victim during every minute of her testimony. Weik also argues his
inability to see Goldbergundermined her credibility. However, we have long recognized
the “credibility of the witnesses” is “exclusively within the province of the trier of fact.”
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State v. Bower, 254 Mont. 1, 8, 833 P.2d 1106,1111 (1992). Here, the jury, not Weik, was
tasked with assessing Goldberg’s credibility and, after doing so, found Weik guilty of
stalking her. Weik’s trial satisfied the elements of confrontation and did not violate his
Sixth Amendment or Article II, Section 24,rights.
¶22 2. Was the restitution amount written in the District Court’s judgment incorrect?
¶23 As part of a criminal sentence, a court must require an offender to make full
restitution to any victim who sustained pecuniary loss because of the offense. Section
46–18–241(1), MCA. Restitution engrafts a civil remedy onto a criminal statute and
creates a procedural shortcut for crime victims entitled to a civil recovery against the
offender. Aragon, ¶ 16. Restitution is not limited “‘to victims defined in terms of the
offense for which the defendant was convicted or to losses arising directly from the
defendant’s criminal conduct.’” State v. Jent, 2013 MT 93, ¶ 12, 369 Mont. 468,
299 P.3d 332 (quoting State v. LaTray, 2000MT 262, ¶ 12, 302 Mont. 11, 11 P.3d 116).
A “causal relation between the offender’s criminal conduct and the pecuniary loss is the
touchstone for determining whether a person or entity is a victim entitled to restitution.”
Jent, ¶ 13.
¶24 On August 9, 2016, the District Court orderedWeik to pay $42,262.06 in restitution.
Thisamount reflectedthe amended figure Goldberg requested less$516.92,an amount the
court determined was not compensableas restitution. On September 26, 2016, the District
Court issued its written judgment requiring Weik to pay $47,798.90 in restitution. The
State concedes the District Court’s September 26, 2016 Judgment is incorrect and should
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be corrected to match the amount included in the August 9, 2016 Restitution Order.
Therefore, we instructthe District Court to correct its written judgment to accurately reflect
itsrestitution award of$42,262.06.
¶25 Additionally, Weik argues the District Court clearly erred by includingamounts for
Goldberg’s passport replacement, legal expenses, and lost wages in its restitution order.
Goldberg submitted an affidavit of her pecuniary loss to the District Court and included
$225 for replacing her passport; $25,080.22 for legal expenses she incurred defending
against the two civil lawsuits Weik filed against her; and $11,405.28 for lost wages. Weik
argues there was insufficient evidence for the District Court to findWeik took Goldberg’s
passport. A finding of fact is clearly erroneous if it is not supported by substantial evidence.
Passwater, ¶ 9 (quoting Aragon, ¶ 9). The State presented evidence Weik took Goldberg’s
personal items, including hair from her hairbrush, while they lived together; Goldberg
noticed her passport was missing when she moved out of the house she shared with Weik;
and Weikhad a large amount of Goldberg’s personal property in his storage unit and shed,
including a photocopy of Goldberg’s passport. We conclude the State presented substantial
evidence that a reasonable mind could conclude Weik took Goldberg’s passport. See
Passwater, ¶ 9 (quoting Aragon, ¶ 9).
¶26 For the first time on appeal, Weik argues Goldberg’s legal expenses were not
causally connected to his criminal conduct and that the amount Goldbergclaimed for lost
wages in her affidavit of pecuniary loss was inaccurate because of a mathematical error.
At the District Court, Weik only argued there was insufficient evidence Goldberg actually
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paid her legal expenses and that there was no causal connection between his conduct and
Goldberg’s lost wages. “It is perhaps our most fundamental rule of appellate review that,
with rare exception, we will not review an issue or claim that was not property preserved
for appeal.” State v. Norman, 2010 MT 253, ¶ 16, 358 Mont. 252, 244 P.3d 737. We
decline to review Weik’s unpreserved arguments on appeal.

Outcome: The District Court’s judgment is affirmed except that the District Court is instructed to correct the restitution amount reflected in its written judgment from $47,798.90 to $42,262.06.

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