State v. D. SchultzState v. D. Schultz
APPEAL FROM: District Court of
COUNSEL OF RECORD:
For Appellant:
Melinda A. Driscoll, Plath Kemmick Law, LLC, Billings, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, John M. Ryan, Deputy County Attorney, Billings, Montana
Filed:
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 David Ray Schultz (Schultz) appeals from a September 26, 2023 judgment of the Thirteenth Judicial District Court, sentencing Schultz to 100 years at Montana State Prison (MSP) and imposing a mandatory 25-year parole restriction pursuant to
¶2 We restate the issue on appeal as follows:
Whether the district court is required to sentence an offender to the mandatory minimum sentence for sexual child abuse when the offender attempted to commit the offense with an adult undercover law enforcement officer posing as a 12-year-old child.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On October 28, 2021, Schultz responded to a profile on an adult website for a woman offering sexual services. A homeland security undercover agent had posted the advertisement. The woman also offered services including sexual contact with two young girls, one 12 years old and one 14 years old. Schultz agreed to make a cash donation in exchange for time with the girls. Schultz traveled to an agreed-upon hotel on October 29 intending to meet with the girls to engage in sexual conduct. Law enforcement met Schultz at the agreed location and arrested him.
¶4 The State charged Schultz with two counts of Sexual Abuse of Children pursuant to
¶5 Schultz filed a motion to strike the sentencing enhancements, arguing the facts of this case do not trigger the mandatory sentence based on a “victim‘s” age because no actual victim was alleged, nor did one exist. The State then filed an Amended Information charging Schultz with two counts of Attempted Sexual Abuse of Children pursuant to ¶6 Schultz thereafter pleaded guilty to one count of Attempted Sexual Abuse of Children, in which he believed he was traveling to meet a 12-year-old girl. Schultz reserved his right to appeal the court‘s denial of his motion to strike the sentencing enhancement. The State agreed to dismiss Count II, which alleged Attempted Sexual Abuse of Children toward the fictional 14-year-old girl, and agreed to recommend a sentence on Count I of 100 years in MSP with 75 years suspended and the 25-year mandatory parole restriction pursuant to imposed the State‘s recommended sentence.2 Schultz appeals the court‘s denial of his motion to strike the sentence enhancement where “the victim was 12 years of age or younger.” ¶7 We review a sentence for legality only. State v. Hinshaw, 2018 MT 49, ¶ 7, 390 Mont. 372, 414 P.3d 271. “Our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes.” Hinshaw, ¶ 7 (quotation omitted). The interpretation and construction of statutory language is a matter of law which we review de novo, determining whether the district court‘s interpretation and construction is correct. Reichert v. State, 2012 MT 111, ¶ 19, 365 Mont. 92, 278 P.3d 455. ¶8 The issue before the Court is relatively simple and concerns a straightforward interpretation of a statute‘s clear language. We begin by noting that the most basic premise of statutory construction requires this Court to ascertain and declare what is in terms or in substance contained within the statute. Section what has been omitted, or . . . omit what has been inserted.‘” State ex rel. Kurth v. Grinde, 96 Mont. 608, 614, 32 P.2d 15, 17 (1934) (quoting § 10519, RCM (1921) (now ¶9 All statutory analysis looks to the plain language as written to ascertain legislative intent and to give effect to legislative objectives. State v. Garcia, 2025 MT 25, ¶ 13, 420 Mont. 283, 563 P.3d 277; State v. Heath, 2004 MT 126, ¶¶ 24-25, 321 Mont. 280, 90 P.3d 426. Legislative intent “is to be ascertained, in the first instance, from the plain meaning of the words used.” Montana Vending, Inc. v. Coca-Cola Bottling Co., 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. “If the intent of the legislature can be determined from the plain meaning of the words used in the statute, the plain meaning controls, and this Court need go no further nor apply any other means of interpretation.” Montana Vending, ¶ 21 (citing Gulbrandson v. Carey, 272 Mont. 494, 500, 901 P.2d 573, 577 (1995)). “It is only when the intent cannot be ascertained from the language of the statute that we examine legislative history.” Gulbrandson, 272 Mont. at 500, 901 P.2d at 577. When we are construing a statute as a whole, and giving effect to its several sections, our interpretation is a “‘holistic endeavor’ and must account for the statute‘s text, language, structure, and object.” City of Missoula v. Fox, 2019 MT 250, ¶ 18, 397 Mont. 388, 450 P.3d 898 (quoting Heath, ¶ 24). ¶10 Sexual Abuse of Children, codified at Subsection (1) sets forth the proscribed conduct and defines the offense. The following sections of (1) A person commits the offense of sexual abuse of children if the person: . . . (c) knowingly, by means of communication, including electronic communication or in person, persuades, entices, counsels, coerces, encourages, directs, or procures a child under 16 years of age or a person the offender believes to be a child under 16 years of age to engage in sexual conduct, actual or simulated, or to view sexually explicit material or acts for the purpose of inducing or persuading a child to participate in any sexual activity that is illegal; . . . (h) knowingly travels within, from, or to this state with the intention of meeting a child under 16 years of age or a person the offender believes to be a child under 16 years of age in order to engage in sexual conduct, actual or simulated; or (i) knowingly coerces, entices, persuades, arranges for, or facilitates a child under 16 years of age or a person the offender believes to be a child under 16 years of age to travel within, from, or to this state with the intention of engaging in sexual conduct, actual or simulated. (Emphasis added.) The provisions in subsections (1)(c), (1)(h), and (1)(i) that identify the proscribed conduct based on the offender‘s belief of a child‘s age do not appear elsewhere in the statute. The Legislature demonstrated its understanding that sting operations and ignorance of age claims were nonetheless criminal offenses when it included persons the offender believes to be a child in the definition of the offense. Section ¶11 A careful reading of the statute‘s provisions and terms shows that the offense of sexual abuse of children is first defined in subsection (1), and then the commensurate penalties are set forth in subsection (2). All of subsection (1) addresses how the offense of sexual abuse of children can be committed and specifically allows for the situation here with an undercover officer, where the offender believes the child to be under 16. There is no dispute that Schultz committed the offense of sexual abuse of children. Accordingly, the inquiry becomes what is the applicable penalty provision. ¶12 Subsection (2) sets forth the penalty provisions. Section proscribed conduct of sexual intercourse without consent in subsection (1) and in subsection (2) set forth the general penalty provision, with exceptions depending on “the victim[‘s]” age and the age of the offender. See in other subsections defining criminal offenses. The clear differentiation of language within the statute indicates a purposeful legislative decision not to apply enhanced sentencing to situations involving fictitious victims. The deliberate inclusion of specific victim language in penalty enhancements demonstrates a clear legislative intent to limit these provisions to circumstances involving actual minors, not fictitious victims. ¶14 The plain language of the statute evinces a clear legislative intent to mandate a harsher punishment for that conduct which has caused harm to younger victims. The specific language used in the statute, its placement within the structure of the statute, the existence of a general penalty provision which captures Schultz‘s conduct, and specific exceptions to the general penalty consistent with the Legislature‘s goal of protecting younger victims from harm all support a conclusion that the Legislature intended an actual, specified child be a victim before the mandatory sentencing enhancements could be applied. ¶15 Our conclusion considers the statute as a whole. This Court construes statutes by reading and interpreting them “as a whole, without isolating specific terms from the context in which they are used by the Legislature.” State v. Triplett, 2008 MT 360, ¶ 25, 346 Mont. 383, 195 P.3d 819 (quotation omitted). We have long held that “[w]hen different language is used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning and effect.” In re Kesl‘s Estate, 117 Mont. 377, 386, 161 P.2d 641, 645-46 (1945) (quotation omitted); see also, e.g., Mont. Env‘t Info. Ctr. v. Mont. Dep‘t of Pub. Serv. Regul., 2024 MT 56, ¶ 59, 415 Mont. 499, 545 P.3d 69. Here, the Legislature used the words “or a person the offender believes to be a child under 16 years of age” three times within the statute to criminalize certain conduct. See ¶16 The ordinary usage of “victim” also supports our conclusion. “Except where phrased in technical words and phrases that have acquired a peculiar legal meaning, statutory language must be construed in accordance with the plain meaning of the subject words and phrases in ordinary usage.” City of Great Falls v. Bd. of Comm‘rs, 2024 MT 118, ¶ 19, 416 Mont. 494, 549 P.3d 1158 (citing https://perma.cc/28Y6-VJ6G. These definitions clearly indicate the defendant has harmed a specific person or is otherwise accountable for intended harm against a specific person. ¶17 The State argues the plain language of the statute shows that each of the offenses can be completed “whether the victim is ‘actual or simulated.‘” Section ¶18 The State also argues the legislative history of not clearly tie the increased penalties to crimes involving a fictitious victim, and it would be improper for this Court to extend such authority to a sentencing court because we deem the bill “extremely powerful.” The Legislature added the penalty provision to multiple, but not all, sexual crimes that have no similar provision criminalizing conduct directed at someone the offender believed to be a certain age. See Sexual Intercourse Without Consent ¶19 This holding does not give sexual predators a “free pass,” nor does it require law enforcement officers to use an actual underage child as bait in undercover operations. When we apply basic rules of statutory interpretation, we conclude “a person the offender believes to be a child under 16 years of age” is not a victim for purposes of sentencing enhancement under the statute. There is no victim under 16 years of age or under 12 years in the instant case. That does not mean Schultz escapes punishment. Schultz is subject to the general penalty provision in or life imprisonment and may additionally be fined up to $10,000—a provision that reflects liability for the criminal offense Schultz committed but without the enhanced penalty for harm inflicted on an actual child victim of less than 16 years of age. Section ¶20 The District Court did not have lawful authority to enhance Schultz‘s sentence pursuant to ¶21 Reversed and remanded for resentencing consistent with this Opinion. /S/ LAURIE McKINNON We Concur: /S/ INGRID GUSTAFSON /S/ KATHERINE M BIDEGARAY /S/ JAMES JEREMIAH SHEA Chief Justice Cory J. Swanson, specially concurring. ¶22 I disagree the issue “is relatively simple and concerns a straightforward interpretation of a statute‘s clear language.” Opinion, ¶ 8. Nor do I agree the statute “clearly demonstrates that the Legislature intended application of the enhanced sentence to defendants like Schultz.” Dissent, ¶ 44. The answer is not simple, because the statute is not clear. ¶23 This case is entirely about how the Legislature wrote the applicable statute, and how this Court discharges its duty to properly construe it. We all cite to the appropriate statutes and caselaw regarding how to interpret the statutory text, but we differ on how to apply them. The task of interpreting criminal statutes is more difficult due to competing guidelines of interpretation. Federal caselaw requires “ambiguous statutes to be interpreted in favor of a defendant” under the so-called “rule of lenity.” State v. Liefert, 2002 MT 48, ¶ 26, 309 Mont. 19, 43 P.3d 329 (citing U.S. v. Batchelder, 442 U.S. 114, 121, 99 S. Ct. 2198, 2203 (1979)). But the Montana Legislature has repealed the “rule of the common law that penal statutes are to be strictly construed,” and therefore the rule of lenity is not a Montana statutory requirement. Section 864 P.2d 235, 241 (1993) (overruling State v. Goodwin, 249 Mont. 1, 813 P.2d 953 (1991), invoking the ¶24 Schultz was initially charged with two counts of Sexual Abuse of Children, subsequently amended to Attempted2 Sexual Abuse of Children, under A person commits the offense of sexual abuse of children if the person: . . . (h) knowingly travels within, from, or to this state with the intention of meeting a child under 16 years of age or a person the offender believes to be a child under 16 years of age in order to engage in sexual conduct, actual or simulated. Section ¶25 The Majority and Dissent agree the Legislature intended to criminalize Schultz‘s conduct, even when no actual child victim exists. Opinion, ¶ 11; Dissent, ¶ 35. Attempting to commit the sexual crime against an alleged child who turns out to be an undercover law enforcement officer is still illegal, and the mistake of targeting a law enforcement adult is not a defense. Hantz, ¶¶ 3, 12, 29. Thus, enhancing punishment—even when there is only a simulated child—could be consistent with the Legislature‘s intent to criminalize such conduct.3 The majority should not give short shrift to that intent and criminal scheme. ¶26 The Dissent is correct subsection (2)(a) “incorporates all varieties of ‘the offense of sexual abuse of children’ under all subsections [(except subsection (1)(e), which is penalized under subsection (2)(c))] including under either alternate victim scenario in the three luring subsections, thus initially subjecting all offenders under the statute to the same sentence.” Dissent, ¶ 36. However, the Dissent then continues to focus on the words “convicted of the offense of sexual abuse of children” while ignoring the preliminary conditional language (”if the victim” is a certain age or younger) required for an enhanced sentence under subsections (2)(b) and (4)(a). The statute does not embody the uniformity described by the Dissent; it uses different language in the sections criminalizing certain conduct versus the sections enhancing penalties for the age of the victim. We are thus left with an ill-fitting statute susceptible to ¶27 First, we look to federal law. In defending the sentencing enhancement, the District Court and State relied on federal cases that are less helpful than one would hope. They merely affirm what we have all agreed: a defendant may complete this crime even when a fictitious child is used in a sting operation. E.g., United States v. Saldana-Rivera, 914 F.3d 721, 723 (1st Cir. 2019); United States v. Gagliardi, 506 F.3d 140, 143, 145 (2d Cir. 2007) (collecting cases); accord Hantz, ¶ 29. ¶28 The only decision the District Court cited with a similar sentencing issue was United States v. Angwin, 560 F.3d 549 (6th Cir. 2009). There, Angwin communicated with an undercover agent who posed as a mother offering her 7-year-old daughter for sex with Angwin. Angwin, 560 F.3d at 550. Angwin argued the sentence enhancement should not apply to him, because there was not an actual child victim. The Sixth Circuit Court of Appeals disagreed, relying upon the United States Sentencing Guidelines where “‘[v]ictim’ includes an undercover law enforcement officer.” ¶29 Second, Montana‘s statutory law includes a similar example of crimes that may be completed even though the facts are not as believed, while a sentencing enhancement requires the proven existence of applicable facts. The offense of Assault with Weapon, pursuant to Stillsmoking, 2020 MT 154, ¶¶ 15, 21, 400 Mont. 256, 470 P.3d 183; State v. Clemo, 1999 MT 323, ¶ 9, 297 Mont. 316, 992 P.2d 1263. ¶30 This analogous sentence enhancement scheme makes sense when applied to this less-than-clear statute criminalizing sexual abuse of children. A defendant can be convicted for attempting to engage in prohibited sexual conduct with someone whom he believes to be a child under 16, despite the factual impossibility of consummating the sexual act with the adult undercover officer. Section ¶31 The Dissent is correct, it seems odd and inconsistent with the Legislature‘s goals ¶32 Schultz does not receive a “free pass,” as the State argues. Under the plain language of this law‘s sentencing structure, Schultz “shall be punished by life imprisonment or by imprisonment in the state prison for a term not to exceed 100 years.” Section /S/ CORY J. SWANSON Justice Jim Rice, dissenting. ¶33 The Court correctly cites the standards of statutory interpretation, but in my view fails to conduct the proper analysis, neglecting to review the statute in its entirety and reasoning that the decision turns on a presumption that the Legislature intended a different meaning between “a” and “the.” Opinion, ¶ 15. However, rather, the Legislature structurally applied the enhanced penalty provisions to all offenses under the statute, and then explicitly exempted the offenses to which the enhanced provisions do not apply. Although unnecessary to consider, legislative history confirms the Legislature‘s intention. ¶34 “Statutory construction is a ‘holistic endeavor’ and must account for the statute‘s text, language, structure, and object.” Heath, ¶ 24. The statute at issue is lengthy but consideration of the whole illustrates the clear framework enacted by the Legislature which resolves the question here in favor of the State‘s argument. The statute states as follows: 45-5-625. Sexual Abuse of Children. (1) A person commits the offense of sexual abuse of children if the person: (a) knowingly employs, uses, or permits the employment or use of a child in an exhibition of sexual conduct, actual or simulated; (b) knowingly photographs, films, videotapes, develops or duplicates the photographs, films, or videotapes, or records a child engaging in sexual conduct, actual or simulated; (c) knowingly, by any means of communication, including electronic communication or in person, persuades, entices, counsels, coerces, encourages, directs, or procures a child under 16 years of age or a person the offender believes to be a child under 16 years of age to engage in sexual conduct, actual or simulated, or to view sexually explicit material or acts for the purpose of inducing or persuading a child to participate in any sexual activity that is illegal; (d) knowingly processes, develops, prints, publishes, transports, distributes, sells, exhibits, or advertises any visual or print medium, including a medium by use of electronic communication in which a child is engaged in sexual conduct, actual or simulated; (e) knowingly possesses any visual or print medium, including a medium by use of electronic communication in which a child is engaged in sexual conduct, actual or simulated; (f) finances any of the activities described in subsections (1)(a) through (1)(d) and (1)(g), knowing that the activity is of the nature described in those subsections; (g) possesses with intent to sell any visual or print medium, including a medium by use of electronic communication in which a child is engaged in sexual conduct, actual or simulated; (h) knowingly travels within, from, or to this state with the intention of meeting a child under 16 years of age or a person (i) knowingly coerces, entices, persuades, arranges for, or facilitates a child under 16 years of age or a person the offender believes to be a child under 16 years of age to travel within, from, or to this state with the intention of engaging in sexual conduct, actual or simulated. (2) (a) Except as provided in subsection (2)(b), (2)(c), or (4), a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term not to exceed 100 years and may be fined not more than $10,000. (b) Except as provided in 46-18-219, if the victim is under 16 years of age, a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $10,000. (c) Except as provided in 46-18-219, a person convicted of the offense of sexual abuse of children for the possession of material, as provided in subsection (1)(e), shall be fined not to exceed $10,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both. (3) An offense is not committed under subsections (1)(d) through (1)(g) if the visual or print medium is processed, developed, printed, published, transported, distributed, sold, possessed, or possessed with intent to sell, or if the activity is financed, as part of a sexual offender information or treatment course or program conducted or approved by the department of corrections. (4) (a) If the victim was 12 years of age or younger and the offender was 18 years of age or older at the time of the offense, the offender: (i) shall be punished by imprisonment in a state prison for a term of 100 years. The court may not suspend execution or defer imposition of the first 25 years of a sentence of imprisonment imposed under this subsection (4)(a)(i) except as provided in 46-18-222(1) through (5), and during the first 25 years of imprisonment, the offender is not eligible for parole. The exception provided in 46-18-222(6) does not apply. (ii) may be fined an amount not to exceed $50,000; and (iii) shall be ordered to enroll in and successfully complete the educational phase and the cognitive and behavioral phase of a sexual offender treatment program provided or approved by the department of corrections. (b) If the offender is released after the mandatory minimum period of imprisonment, the offender is subject to supervision by the department of corrections for the remainder of the offender‘s life and shall participate in the program for continuous, satellite-based monitoring provided for in 46-23-1010. (5) As used in this section, the following definitions apply: (a) “Electronic communication” means a sign, signal, writing, image, sound, data, or intelligence of any nature transmitted or created in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. (b) “Sexual conduct” means: (i) actual or simulated: (A) sexual intercourse, whether between persons of the same or opposite sex, as defined in 1-1-201; (B) penetration of the vagina or rectum by any object, except when done as part of a recognized medical procedure; (C) bestiality; (D) masturbation; (E) sadomasochistic abuse; (F) lewd exhibition of the genitals, breasts, pubic or rectal area, or other intimate parts of any person; or (G) defecation or urination for the purpose of the sexual stimulation of the viewer; or (c) “Simulated” means any depicting of the genitals or pubic or rectal area that gives the appearance of sexual conduct or incipient sexual conduct. (d) “Visual medium” means: (i) any film, photograph, videotape, negative, slide, or photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or (ii) any disk, diskette, or other physical media that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method. ¶35 Section (1) of the statute defines the different ways in which a person can commit “the offense of sexual abuse of children.” These words—“the offense of sexual abuse of children“—reiterate the title of the statute and constitute a key phrase that is used repeatedly throughout the statute. The phrase “the offense of sexual abuse of children” incorporates in nine subsections the multiple ways the offense can be committed, including three subsections that describe enticing or “luring” offenses, subsections (1)(c), (1)(h), and (1)(i). Under these “luring” subsections, a person can commit the offense of sexual abuse of children under each subsection by acting in multiple different ways toward two different victim situations: either with 1) “a child under 16 years of age” or 2) “a person the offender believes to be a child under 16 years of age.” Importantly, these luring subsections, whether involving a “child” victim or a “person believed” victim, are all included within and likewise constitute “the offense of sexual abuse of children.” ¶36 Then, section (2), subsection (a), provides that, except as otherwise provided in subsections (2)(b) and (2)(c), or in section (4), provisions discussed below, “a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term not to exceed 100 years and may be fined not more than $10,000.” Section ¶37 Then, section (2), subsection (b), provides that “if the victim is under 16 years of age, a person convicted of the offense of sexual abuse of children shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $10,000.” Section the three luring subsections. No carve-out is here made for any individual offenses because the subsection is explicitly applicable to all offenses, including the luring subsections with their “person” victim alternate scenarios. While the Legislature used the word “victim” here instead of the words “child” and “person,” that does not mean the Legislature carved out any particular offense from the statute‘s application. Rather, the plain language indicates it provided a mandatory minimum sentence for a conviction under any subsection that involved a victim less ¶38 Then, with wording that is clear, explicit, and unquestionable, the Legislature carved out from the general applicability of the enhanced penalty those identified offenses that it wished to receive a different sentence. In section (2), subsection (c), the Legislature provided that a person convicted of “the offense of sexual abuse of children for the possession of material, as provided in subsection (1)(e),” shall receive a lesser sentence. Section requires an actual victim to be lured to a sexual encounter for the increased penalty tiers to apply.” ¶39 Schultz cites a district court opinion that held, about this statute, “[i]f the legislature had intended for the mandatory minimum . . . to apply not only to actual victims of less than 16 but also to ‘a person the offender believes to be a child under 16 years of age’ the legislature would have added this language . . . as it did in subsections (1)(c), (h) and (i) of the very same statute.” See Opinion and Order at 16, State v. Phillips, No. DC-22-689 (Mont. Fourth Judicial Dist. April 10, 2023). However, the district court got it exactly backwards. By the text and structure discussed above, the Legislature explicitly applied the mandatory minimum to all offenses under the umbrella “the offense of sexual abuse of children,” knowing that it could carve out offenses thereunder to receive a different sentence if it wanted to. And it explicitly did so in section (2), subsection (c). ¶40 The Court wrestles with the undefined word “victim,” and then reads dispositive meaning into this single word that the Legislature did not provide, reaching the unrealistic conclusion that the Legislature‘s use of this word somehow eliminated the mandatory minimum sentence to an entire sub-group of offenses. The broader term “victim” simply comports with the fact that “the offense of sexual abuse of children” includes nine subsections that include both “child” victims and “person believed” victims. Schultz argues that the enhanced penalty cannot apply “because there is no victim,” but that is incorrect; the luring subsections were written to incorporate as the targeted victim a person believed “to be a child under 16 years of age.” Thus, whether law enforcement engages a defendant by way of a 43-year-old male officer alone or by way of a 22-year-old female officer posing as the 15-year-old child who has reported defendant‘s attempt to lure her to law enforcement, the provision applies to all victim scenarios. ¶41 It should be noted that “the offense of sexual abuse of children” is repeatedly made to apply to both “actual or simulated,” including in the luring subsections. The proliferation of artificial intelligence and computer-generated imagery will result in cases involving the simulation of the entire act, including the victim. As the State argues, “[t]hese offenses are inchoate on their terms and do not require an actual victim.” And here, the State charged the offenses as attempted, further eliminating the need for an actual child victim in the proof of the case. ¶42 Having resolved the Legislature‘s intention for section (2), subsection (b), the proper interpretation of section (4) follows. The entirety of this section was added to the pre-existing provisions of statute in 2007, with the passage of SB 547. See 2007 Mont. Laws ch. 483. Without distinguishing between any of the existing subsections of the statute, the legislation provided that “[i]f the victim was 12 years of age or younger and the offender was 18 years of age or older at the time of the offense,” the enhanced sentence, including mandatory minimums, would ¶43 I would stop with this analysis of the statute‘s text and structure, and affirm. It is of note, however, that the legislative history of SB 547, introduced to strengthen the penalties for child abuse crimes, includes the bill‘s sponsor‘s floor explanation advising the Senate that the legislation was “an extremely powerful bill” that increased penalties for the crime committed against children under the age of 16, and added, “we‘ve already allowed law enforcement officers to act as decoys.” Senate Floor Session: Hearing on S. B. 547, 60th Leg. 13:45:50-13:46:55 (Mont. 2007). Clearly, the State Senate was advised that the increased penalties enacted by the bill would be applicable to cases involving police decoys, as here. ¶44 In my view, hanging this case on the difference between articles “a” and “the” is incorrect and fails to consider the entire framework of the statute that is available to us, which clearly demonstrates that the Legislature intended application of the enhanced sentence to defendants like Schultz. ¶45 I would affirm. /S/ JIM RICE Justice Beth Baker joins in the dissenting Opinion of Justice Jim Rice. /S/ BETH BAKERSTANDARD OF REVIEW
DISCUSSION
CONCLUSION