Tome reaches plea agreement in 2016 rape case; released, designated Tier 3 sex offender
A District Court judge ordered on Dec. 3 that Richard Tome be released from custody after reaching a plea deal in a years long rape case.
Tome has been designated a Tier 3 sex offender and he must register with the state system within three days of his release from custody wherever he locates.
As of Dec. 7, he was not showing in the state registry, but as a new registration, it could take a few days to appear in the system.
In Montana, Tier 3 sex offenders are “a person who has been convicted of a sexual offense and is considered to be a high risk of reoffending and a threat to public safety,” according to the Great Falls Police Department and must register for life, update their address with the Department of Justice every 90 days and provide law enforcement with a current photograph.
Tome was charged with sexual intercourse without consent in 2016 and the victim was 13 years old at the time, deaf and developmentally delayed, according to court documents.
The first trial was declared a mistrial and a second trial was set, during which Tome was convicted and sentenced to life in prison. Tome appealed the conviction to the Montana Supreme Court, which reversed his conviction and sent the case back to district court for a third trial.
The issues center around whether the victim was able to testify and whether Tome’s constitutional right to confront his accuser was violated.
In the second trial, the court ruled the victim was unable to testify and allowed witnesses to testify as to what the victim had told them and her recorded interview.
In the third trial, the victim did not want to testify, according to Cascade County Attorney Josh Racki.
In October 2024, Tome entered an Alford plea as part of a plea agreement that isn’t an admission of guilt but acknowledges there’s enough evidence to convict. In exchange, the state recommended a sentence of time served and registering as a Tier 3 sex offender.
As of Oct. 17, 2024, when the plea agreement was being signed, Tome had been incarcerated since Nov. 7 2016 which equated to seven years, 11 months and 12 days. He remained incarcerated until the judge issued an order of release on Dec. 3.
According to court documents, in November 2016, the victim, who attended the Montana School for the Deaf and Blind, “became emotional and distraught in class, necessitating that her teacher take her to the school psychologist.”
The victim told the school psychologist and the behavioral specialist that she wanted to tell them what had happened to her the previous day when Tome had knocked her out of her chair while she was eating breakfast at home, pulled down her pants and raped her.
She used sign language and said “[h]urt, hurt, hurt, bleed, bleed, bleed,” while maintaining eye contact and the counselors believed she “wanted to get this out” and “make sure that [they] understood exactly what she was talking about,” according to court documents.
The counselors reported her assault to law enforcement, who spoke with the victim and her mother that same day.
The girl’s mother translated for her using sign language and the office communicated with her through notes, gestures and sign language, according to court documents.
The girl told the officer that Tome lived with them, had showed her pornographic photos and raped her.
The officer gathered her bedding that appeared to have blood stains, and the officers submitted her underwear, sweatpants and rape kit sample for DNA testing, but it did not match Tome, but it was not clear if those were the clothes she was wearing at the time of the assault and the DNA evidence was later deemed inconclusive.
The victim was taken to the Benefis emergency room for a sexual assault exam and the nurse saw a laceration in her vaginal area, vaginal tenderness and redness.
The nurse testified during the trial that the victim has told her “[h]e hurt me. He was on top of me. Why would he do that? I’m just a little girl.”
The nurse testified that the victim told her Tome pulled her pants down and rapped her on the floor, according to court documents.
The victim was taken to the Montana Department of Public Health and Human Services for a forensic interview with a child protection specialist the assistance of an American Sign Language interpreter. The interview was recorded.
The specialist testified that the victim said Tome had shown her pornographic photos and had sex with her. The specialist testified that the victim told her what he did was wrong that that it hurt.
Tome denied the incident, but while incarcerated told another inmate that he was in jail “for having sex without consent” with a disabled minor and that he’d get away with it “because he used a rubber,” according to court documents.
The other inmate also testified that Tome had told him he showed the girl pornographic photos and his testimony of what Tome had told him was “largely consistent” with the victim’s account.
In 2017, Tome filed a motion to depose the victim under a provision of state law that allows the deposition of a witness if they are “unwilling to provide relevant information to a requesting party and the witness’s testimony is material and necessary in order to prevent a failure of justice,” according to court documents.
The District Court denied his motion and said he was entitled to view any pre-trial interviews the victim gave to law enforcement and would be able to cross-examine her at trial.
The jury trial was held April 9-10, 2018 and before the victim was sworn in, the prosecution filed a brief supporting its introduction of hearsay testimony from five witnesses describing what the victim had told them about the incident and argued that if the victim were to be declared incompetent due to her developmental delays, she wouldn’t be available to testify, so the hearsay testimony should be allowed, according to court documents.
Tome said that if she were deemed incompetent that he would request a mistrial arguing that the prosecution didn’t provide enough notice for his defense to prepare and that since he wasn’t allowed to depose the victim previously and if she didn’t testify at trial, he’d have been tried without having the opportunity to cross-examine her, according to court documents.
Montana law requires the prosecution to give “sufficient notice to provide the adverse party with a fair opportunity to prepare,” and the prosecution argued that Tome had the ability to gather information based on the DPHHS forensic evidence.
Tome countered that by arguing that the issue was that “without that notice, [he] fully expected to be able to cross-examine” the witness under existing case law, “and confront her, let the jury see that, and then do the impeachment of her in the eyes of the jury because this is an attack on credibility,” according to court documents, and his defense was centered on the inconsistencies in the victim’s statements to the five witnesses.
Before the victim took the stand, the judge spoke to her to establish competency with questions that focused on distinguishing between a truth and a lie.
Based on her testimony, the court found that the witness was not competent to testify and said, “the witness, because of her intellectual and developmental disabilities cannot appreciate the difference between a truth and a lie. Most certainly, she can appreciate differences between colors or differences between Disney characters. But that differentiation between telling the truth and telling a lie, which is paramount to understanding why she is being brought into court, is missing,” according to court documents.
The court declared a mistrial given Tome’s right to confront and question his accuser and set a new trial date for August 2018. Two months before the new trial date, the court held a hearing to determine if allowing hearsay testimony would be allowed in this case since it was the abuse of a person with a developmental disability.
The court ruled that the hearsay testimony would be allowed and that the victim was unable to testify at trial and moved the trial to December 2018, when a jury found Tome guilty.
In 2021, the Montana Supreme Court found “Tome’s constitutional right of confrontation was violated because testimony from three witnesses about the out-of-court statements of T.C. was admitted during his trial without Tome having a prior opportunity to cross-examine T.C. The error, given the quality of the testimony, was not harmless. Tome’s conviction is reversed and remanded for a new trial.”
The justices agreed 5-2 and the dissenting opinion, written by Justice Jim Rice, argued that “necessary flexibility…must
narrowly remain under the confrontation clause, and does remain, and that the requirements of trustworthiness” required under previous case law were established by the prosecution to allow the admission of the victim’s statements.
Rice wrote that the majority opinion didn’t cite any federal case regarding the issue of victims who are incapable of testifying.
“If the most vulnerable victims of abuse in our society cannot be heard—ever—then there is something wrong with the constitutional rule,” Rice wrote.
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