State v. Lacey, 272 P.3d 1288

Lacey was convicted of two counts of sexual intercourse without consent in Gallatin County; the information alleged incapacity due to sleep for count one.
J.G. was 16 years old at the time of the assaults and highly intoxicated on multiple occasions at Lacey’s residence.
Lacey provided J.G. with alcohol and drugs and initiated repeated sexual contact with him when intoxicated.
J.G. resisted, but the assaults continued, with at least one instance where J.G. woke to Lacey’s penis in his mouth.
Lacey fled to California/Mexico; investigation began in 1997, but charges were not pursued until 1999, and he was not located until 2007.
At trial in 2010, the State charged two theories: force (complete the crime through force) and incapacity to consent due to sleep or intoxication; the district court allowed a theory based on intoxication/physical helplessness, and the court later substituted a not guilty verdict on count one after ruling the force theory was improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the prosecutor’s statements warrant plain error review?	Lacey	Lacey	Yes for plain error?
Did the State impermissibly change its legal theory of incapacity?	Lacey	Lacey	No; information read as whole supported the theory; no reversible error

Doyle v. Ohio, 426 U.S. 610 (U.S. (1976)) (silence may not be used against a defendant)
Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000) (emotional, prejudicial appeals to religion improper)
Spotted Eagle, 358 Mont. 22 (2010 MT 222) (changing essential elements constitutes reversible error)
Clausell v. State, 326 Mont. 63 (2005 MT 33) (trial strategy may justify no objection to opening/closing)
Robinson v. State, 356 Mont. 282 (2010 MT 108) (right to effective assistance of counsel; standard of review)
Spotted Eagle, 340 Mont. 191 (2007 MT 327) (read information as a whole to determine sufficiency)