STATE OF MONTANA, Plaintiff and Appellee, v. DYLAN MIKKEL OHL, Defendant and Appellant.
DA 21-0242
IN THE SUPREME COURT OF THE STATE OF MONTANA
December 13, 2022
2022 MT 241
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 20-294 Honorable Jason Marks, Presiding Judge
COUNSEL OF RECORD:
Chad Wright, Appellate Defender, Carolyn M. Gibadlo, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Christine Hutchison, Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Matt Jennings, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: October 12, 2022
Decided: December 13, 2022
Filed:
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Dylan Mikkel Ohl (Ohl) appeals his conviction and judgment of guilty for the offense of escape.
¶2 We affirm.
¶3 We restate the issues on appeal as follows:
Issue One: Whether the District Court erred in denying Ohl‘s motion to dismiss for insufficient evidence.
Issue Two: Whether the District Court erred in declining to instruct the jury on criminal contempt as a lesser-included offense to escape.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In May 2019, the State petitioned to revoke Ohl‘s suspended sentence on a prior conviction. Ohl admitted the violations and the District Court held a dispositional hearing on June 17, 2020. Due to the COVID-19 pandemic, the court allowed Ohl to appear remotely. The District Court imposed a new sentence of two years with the Department of Corrections (DOC), and ordered him to report to his probation officer in two days. At the State‘s request, the court clarified that “technically, I don‘t have any control over you anymore because you‘re now in the custody of the Department of Corrections,” stating that Ohl was “at this point now, committed to the Department of Corrections.” The probation officer averred that “[i]f you could just have him show up into the office by 5:30, I can meet him there.” Ohl objected to the new deadline, and asked for an additional two days, to which the court responded “if I had the ability to do that, I would. But, unfortunately, I don‘t. So I‘m gonna ask you to meet [the probation officer].” Ohl did not report to his probation officer, and was arrested several months later.
¶5 The State charged Ohl with felony escape on June 18, 2020. Prior to trial, Ohl filed an unopposed motion to include a jury instruction for criminal contempt as a lesser-included offense. After the close of the State‘s evidence at trial, Ohl moved to dismiss for insufficient evidence, arguing that his actions did not meet the statutory definition of escape.1 The District Court ultimately denied both of Ohl‘s motions. The jury returned a guilty verdict and the court sentenced Ohl to six years at the Montana State Prison, all suspended. Ohl appeals.
STANDARD OF REVIEW
¶6 We review denial of a motion to dismiss for insufficient evidence de novo for correctness. State v. McWilliams, 2008 MT 59, ¶ 37, 341 Mont. 517, 178 P.3d 121; State v. Swann, 2007 MT 126, ¶ 17, 337 Mont. 326, 160 P.3d 511. We review a trial court‘s refusal to give an instruction on a lesser-included offense for an abuse of discretion. State v. Denny, 2021 MT 104, ¶ 13, 404 Mont. 116, 485 P.3d 1227. However, whether an offense is lesser included is a question of law, which we review de novo. State v. Molenda, 2010 MT 215, ¶ 3, 358 Mont. 1, 243 P.3d 387.
DISCUSSION
¶7 Issue One: Whether the District Court erred in denying Ohl‘s motion to dismiss for insufficient evidence.
¶8 Ohl argues that the District Court erroneously denied his motion to dismiss for insufficient evidence by misinterpreting the relevant charging statute for the crime of escape. To succeed on a motion to dismiss for insufficient evidence, a defendant must show that, viewing the evidence in the light most favorable to the prosecution, a rational trier
¶9 Ohl maintains that, despite his failure to report to his probation officer, he remained in the “legal custody” of the State, as his “legal status” as a DOC commit did not change. Ohl points to a Youth Court Act provision under
¶10 Ohl‘s preferred interpretation of the escape statute would essentially make
¶11 Here, a “contrary intention plainly appears” to application of the Youth Court Act definition of “legal custody” to the escape statute. See
¶12 The escape statute‘s legislative history is illuminative. See Stockman Bank of Mont. v. Mon-Kota, Inc., 2008 MT 74, ¶ 17, 342 Mont. 115, 180 P.3d 1125 (“When the legislative intent cannot be readily derived from the plain language, or when it is helpful to determine the correct interpretation of the statute, we . . . look to legislative history.“). Prior to 1997, the escape statute provided that a “person subject to official detention commits the offense of escape if he knowingly or purposely removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited time.”
imprisonment which resulted from a conviction for an offense, confinement for an offense, confinement of a person charged with an offense, detention by a peace officer
pursuant to arrest, detention for extradition or deportation, placement in a community corrections facility or program, supervision while under a supervised release program, participation in a county jail work program under 7-32-2225 through7-32-2227 , or any lawful detention for the purpose of the protection of the welfare of the person detained or for the protection of society.
¶13 During the 1997 Legislative session, House Bill 43 (HB 43), amending the escape statute, was introduced at the request of the DOC. See H.B. 43, 55th Leg. 219 (Mont. 1997). The DOC presented testimony before the House Judiciary Committee arguing that two recent Supreme Court rulings had necessitated amending the escape statute. See Hearing on H.B. 43 Before the H. Jud. Comm., 55th Leg. Reg. Sess. Ex. 2 (Mont. 1997). In State v. Nelson, 275 Mont. 86, 910 P.2d 247 (1996), Montana State Prison inmates were performing work on the Deer Lodge golf course under minimal, non-direct supervision by a civilian golf-course employee when they became drunk and took a golf-course-owned vehicle to Helena to purchase more alcohol, where they were apprehended. The Supreme Court overturned the resulting felony convictions, holding that the Deer Lodge golf course was not on the list of places constituting “official detention” under
¶14 During a committee hearing on the issue, HB 43‘s sponsor stated that the bill revised the definition of “official detention” so that “[i]f they are in custody for a felony, then it would be felony escape.” Hearing on H.B. 43 Before the S. Jud. Comm., 55th Leg. Reg. Sess. 6 (Mont. 1997). Likewise, the Department of Justice supported the amendment, opining that:
The 1997 proposed amendments are intended to clarify finally that any person who has been charged with or convicted of a felony who is under lawful custody of the state, county, or city (other than a probationer or parolee) is guilty of felony escape if he escapes from or fails to return to that custody following temporary leave granted for a specific purpose. The bill eliminates the laundry list of facilities from which an escape constitutes a felony and focuses instead on the fact of custody.
Hearing on H.B. 43, 55th Leg. Reg. Sess. at Ex. 3.
¶15 The amendment‘s use of the term “legal custody” was clearly intended to merely remove the necessity that an escape be launched from a particular location, now criminalizing escapes regardless of whether they are commenced from a prison cell, a golf course, or Pork Chop John‘s. Far from making commission of the crime of escape a legal impossibility, the legislative history demonstrates that the intent of the amended definition of “official detention” as placement in “legal custody” was to close loopholes related to the myriad of circumstances in which those with a legal status in the criminal justice system, but not presently enclosed by physical walls, might seek to avoid abiding by the remaining lawfully-imposed restraints on their freedom through physical evasion. The District Court did not err in declining to grant Ohl‘s motion to dismiss for insufficient evidence on the basis of Ohl‘s proposed interpretation of
¶16 As part of his argument that the District Court erred when it denied Ohl‘s motion to dismiss for insufficient evidence,
¶17 Issue Two: Whether the District Court erred in declining to instruct the jury on criminal contempt as a lesser-included offense to escape.
¶18 Ohl argues that the District Court erred in refusing to instruct the jury on criminal contempt as a lesser-included offense of escape. Jury instructions must, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Erickson, 2014 MT 304, ¶ 21, 377 Mont. 84, 338 P.3d 598. A defendant is entitled to a lesser-included offense instruction if the offense, as a matter of law, constitutes an included offense of the charged offense and there is sufficient evidence to support the lesser-included offense instruction. Denny, ¶ 27; State v. Beavers, 1999 MT 260, ¶ 23, 296 Mont. 340, 987 P.2d 371. This rule helps avoid “the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let his action go unpunished simply because the only alternative was acquittal.” State v. Castle, 285 Mont. 363, 367, 948 P.2d 688, 690 (1997).
¶19 In determining whether an offense constitutes an included offense for purposes of jury instructions, we follow the statutory definition of an “[i]ncluded offense” as an offense that:
- is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
- consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or
- differs from the offense charged only in the respect that a less serious injury or risk to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
¶20 Under subsection (a), Ohl must show that the offense of criminal contempt is established by proof of the same or less than all the facts required to establish the commission of the charged offense of escape. “[F]acts,” under
¶21 Here, the elements of escape, incorporating the statutory definition of “official detention,” are that a defendant:
- knowingly or purposely
- eludes
-
placement in government legal custody - to which the defendant is subject
- as a result of being charged or convicted of an offense.
-
See
- knowingly engages in,
- purposely disobeying or refusing,
- any lawful process or other court mandate.
See
¶22 While the mental state requirements of the two statutes are indistinguishable, the range of proscribed acts and accompanying concomitant status capable of constituting an escape are far narrower than for a criminal contempt. It is possible to engage in any number of acts disobeying or refusing a court mandate or lawful process under
¶23 Turning to subpart (c) of the statutory definition of an included offense, we ask whether criminal contempt differs from the offense of escape “only in the respect that a less serious injury or risk to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.”
Properly interpreted, subsection (c) provides that if the only difference between the two offenses is one of degree (be it risk, injury, culpability, or any combination thereof) then it can be a lesser included offense. If there are other differences between the two offenses (other than differences of degree) then it cannot qualify as a lesser included offense.
¶24 For example, while the mental state of willful and wanton disregard may constitute a lesser degree of culpability than the mental state of knowingly, additional “qualitative” differences between criminal endangerment and reckless driving exist, as demonstrated by the additional statutory requirement of driving a vehicle. See Molenda, ¶ 18 (citing Beavers, ¶¶ 17, 29).
¶25 Here, Ohl argues that a court mandate is “less than” placement in legal custody and that to elude is more egregious than to disobey. Assuming for the sake of argument that disobeying or refusing a court mandate is less risky, injurious, or culpable3 than eluding official detention, that is not the only difference between the two offenses. Additional qualitative differences exist, as demonstrated by the additional requirement for
one “elude” “official detention,” as described above. Thus, criminal contempt is not an included offense of escape under
¶26 Ohl points to State v. Williams, 2010 MT 58, ¶¶ 15-30, 355 Mont. 354, 228 P.3d 1127, where we held that the State could not charge the same actions as both sexual assault and sexual intercourse without consent, because, relying on the
¶27 Because criminal contempt is not an included offense of escape under
CONCLUSION
¶28 Ohl has failed to demonstrate on appeal that the District Court erred in denying his motion to dismiss for insufficient evidence on the basis of his interpretation of the essential elements of the crime of escape under
¶29 Affirmed.
/S/ MIKE MCGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR