STATE OF MONTANA, Plaintiff and Appellant, v. EDWARD HAROLD GHOSTBEAR, Defendant and Appellee.
DA 13-0081
IN THE SUPREME COURT OF THE STATE OF MONTANA
October 23, 2014
2014 MT 192A
Honorable Daniel A. Boucher, Presiding Judge
APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC 12-008. COUNSEL OF RECORD: For Appellant: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana; Gina Dahl, Hill County Attorney, Karla Bosse, Special Deputy County Attorney, Havre, Montana. For Appellee: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana. Submitted on Briefs: May 28, 2014. Decided: July 22, 2014. Amended: October 23, 2014.
Filed: __________________________________________
Clerk
¶1 Edward Ghostbear was convicted of sexual assault after a jury trial. The State of Montana appeals from the District Court’s post-trial decision that the misdemeanor penalty provided by
¶2 The issue on appeal is whether the District Court’s post-trial decision was correct.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In January 2012 the State charged Edward Ghostbear with one count of felony sexual intercourse without consent under
¶4 After the jury’s verdict Ghostbear moved that the District Court sentence him to the misdemeanor penalty of a first conviction of sexual assault under
STANDARD OF REVIEW
¶5 A district court’s interpretation of a statute is a conclusion of law which we review for correctness. Montana State Fund v. Simms, 2012 MT 22, ¶ 15, 364 Mont. 14, 270 P.3d 64; Briese v. Mont. Pub. Emp. Ret. Bd., 2012 MT 192, ¶ 11, 366 Mont. 148, 285 P.3d 550; Olson v. Jude, 2003 MT 186, ¶ 34, 316 Mont. 438, 73 P.3d 809. We review a district court’s findings of fact to determine whether they are clearly erroneous. Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175. A finding of fact may be clearly erroneous if it is not supported by substantial evidence in the record; if the district court misapprehended the evidence; or when our review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Brimstone, ¶ 20.
DISCUSSION
¶6 A person commits the offense of felony sexual assault by knowingly subjecting another person to “any sexual contact without consent,” and if the victim is less than 16 years old and the offender is 3 or more years older, or if the offender inflicts bodily
¶7 In Apprendi the United States Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2263-64 (emphasis added); Adams v. State, 2007 MT 35, ¶ 52, 336 Mont. 63, 153 P.3d 601.
¶8 A “sentence enhancement” is a fact that increases the penalty for a crime “beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2263-64. It is a fact not included in the statutory definition of the elements of the charged offense that allows the judge to increase the penalty provided by statute.
¶9 The State charged Ghostbear with the crime of felony sexual assault, specifically under
¶10 The District Court properly instructed the jury. On appeal we consider the instructions as a whole to determine whether a district court fully and fairly instructed the jury on the applicable law. State v. Scarborough, 2000 MT 301, ¶ 47, 302 Mont. 350, 14 P.3d 1202.
¶11 The District Court instructed the jury that Ghostbear was presumed innocent and that the presumption could not be overcome unless the jury was convinced from all the evidence that he was guilty beyond a reasonable doubt. The District Court instructed that the verdict must be unanimous, and that the jury must unanimously agree upon the commission of the same specific act constituting the crime before convicting Ghostbear. The District Court instructed the jury that a statement made by Ghostbear outside the trial could be considered an admission or confession, and that an admission is a statement of fact pertinent to the issue and tending to prove guilt.
¶13 While Ghostbear contends and the District Court determined that there was no evidence of his age and the age of the victim, the record shows otherwise. The State correctly notes that during trial the District Court admitted into evidence a recording and a transcript of an interview of Ghostbear by a law enforcement officer. Early in that interview Ghostbear stated that his date of birth was in 1977, making him 34 years old at the time of the offense. In addition, in that same interview Ghostbear acknowledged that the victim was just turning age 8, making her age 7 at the time of the alleged offense. The victim also testified that she was age 8. The jury heard this evidence and was able to corroborate the respective ages of Ghostbear and the victim because each of them testified at trial. The jurors were entitled to infer from what they observed that the ages of Ghostbear and the victim were as he acknowledged them to be in the admitted interview. The jurors were instructed that they could consider “the appearance of the witnesses on the stand.” The jurors saw, and therefore could consider, the appearance of Ghostbear as a mature man and the victim as a child. Ghostbear does not point to any contrary evidence of age in the record nor does he argue that there was any conceivable way that the jury could fail to conclude that the victim was under the age of 16 and that
¶14 Having been given these and other instructions, the jury returned a verdict that Ghostbear was guilty of “the charge of Sexual Assault, a Felony.” Under the instructions as given, the jury’s guilty verdict required the jury to find the essential elements of sexual assault as charged in this case. Under the instructions as given, the jury could not have returned the conviction without determining as a matter of fact that the victim was under the age of 14 and that Ghostbear was more than 3 years older. By following the instructions and by returning a guilty verdict the jury necessarily found as facts the respective ages of Ghostbear and the victim. This constitutes felony sexual assault under
¶15 The State proved the elements of the crime of felony sexual assault under
¶16 The age evidence was admitted by Ghostbear and the evidence was not contested. Clearly there was no reasonable doubt that the young victim was under the age of 16 and that Ghostbear was more than 3 years older as required for a conviction of felony sexual
¶17 The District Court is reversed and this matter is remanded for further proceedings.
/S/ MIKE McGRATH
We Concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
Justice Laurie McKinnon, specially concurring.
¶18 I agree with the Court that the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), were satisfied at Ghostbear’s trial. However, Ghostbear has raised an important question concerning the jury instructions, which the Court has not addressed. Given our reliance on the jury instructions in holding that there was no Apprendi violation, I believe it is necessary to explain why Ghostbear’s argument on this point fails.
¶19 Additionally, I believe the Court has misconstrued the requirements of
¶20 In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. The Supreme Court subsequently explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004) (emphasis in original). In other words, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537 (emphasis in original). Thus, “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304, 124 S. Ct. at 2537 (citation and internal quotation marks omitted). This principle was later applied to mandatory minimums: “facts that increase mandatory minimum sentences must be submitted to the jury” as well. Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 2160 (2013).
¶21 Based on this constitutional rule, the Supreme Court has distinguished “elements” of an offense from “sentencing factors” or “sentence enhancements” in the following manner. “[A]ny facts that increase the prescribed range of penalties to which a criminal
¶22 Penalty enhancements, in contrast, do not form a constituent part of a new offense. “The term [‘sentencing factor’ or ‘sentence enhancement’] appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.” Apprendi, 530 U.S. at 494 n.19, 120 S. Ct. at 2365 n.19 (emphasis in original). Indeterminate sentencing involves judicial fact-finding in that a judge may implicitly rule on those facts she deems important to the exercise of her sentencing discretion. Blakely, 542 U.S. at 309, 124 S. Ct. at 2540. The critical difference for Apprendi purposes is that, “while sentencing factors may guide or confine a judge’s discretion in sentencing an offender within the range prescribed by statute, judge-found sentencing factors cannot increase the maximum sentence a defendant might otherwise receive based purely on the facts found by the jury.” United States v. O’Brien, 560 U.S. 218, 224, 130 S. Ct. 2169, 2174-75 (2010) (emphasis in original, citation and internal quotation marks omitted). The judge’s authority is limited because, although she may make findings that guide her sentencing discretion within the statutorily prescribed range, she may not make findings that increase the statutorily prescribed range. The judge “may not inflict punishment that the jury’s verdict alone does not allow.” S. Union Co. v. United States, 567 U.S. 343, 132 S. Ct. 2344, 2350 (2012) (brackets and internal quotation marks omitted).
¶23 Ghostbear was charged with sexual assault against his girlfriend’s daughter (A.T.). “A person . . . commits the offense of sexual assault” if the person “knowingly subjects another person to any sexual contact without consent.”
¶25 The jury did not enter a specific finding concerning age; however, the jury was instructed on the definition of sexual assault in Instruction No. 19, as follows:
A person who knowingly subjects another person to any sexual contact without consent commits the offense of sexual assault.
Consent is ineffective if the victim is 14 years of age or younger and the defendant is 3 or more years older than the victim.
This definition of “consent” was taken almost verbatim from the sexual assault statute. See
¶26 Ghostbear argues, however, that Instruction No. 19 “did not direct the jury that the only way to find the ‘without consent’ element was through age findings.” He opines that “the ‘without consent’ element could also be found based upon an ordinary lack of consent (that the victim did not agree to the sexual contact).” He suggests that if the jury found “without consent” based on A.T.’s actual lack of consent, rather than her inability
¶27 Generally speaking, it is true that “without consent” may be found based upon the respective ages of the defendant and the victim, or upon an ordinary lack of consent. In State v. Williams, 2010 MT 58, ¶¶ 24-27, 355 Mont. 354, 228 P.3d 1127, we explained that “without consent,” for purposes of both sexual assault and sexual intercourse without consent, has its “ordinary meaning” as well as certain statutorily defined circumstances where the victim is deemed incapable of consent. The ordinary meaning of “without consent” is “‘the victim is compelled to submit by force . . . .’” Williams, ¶ 27 (quoting
¶28 At Ghostbear’s trial, however, the jury was not given alternative definitions of “without consent.” Indeed, the parties assumed the jury would decide lack of consent based on age alone. At the close of the State’s case-in-chief, Ghostbear moved to dismiss
¶29 Ghostbear posits that the jury nevertheless may have applied the ordinary meaning of “without consent” rather than the age definition. I am not persuaded, however, that the jurors would discard the definition of “without consent” that they were given in favor of a definition that they were not given. The District Court advised the jury: “I will instruct you on the laws you must apply to the evidence presented in the case in order to reach a verdict . . . . These instructions are intended to cover all necessary laws which are pertinent to the case. You must take the law in this case from my instructions alone.” Juries are presumed to follow the law that the court provides. State v. Sanchez, 2008 MT 27, ¶ 57, 341 Mont. 240, 177 P.3d 444. Ghostbear points to nothing in the record—no trial testimony or arguments by counsel—supporting his theory that the jurors may have made their “without consent” finding based on the ordinary meaning of this term. A.T. was not asked whether she had been “compelled to submit by force,” and she provided no such testimony. A.T. was asked her age, and she testified that she was eight years old at
¶30
An enhancing act, omission, or fact is an act, omission, or fact, whether stated in the statute defining the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and that allows or requires a sentencing court to add to, as provided by statute, a penalty provided by statute for the charged offense or to impose the death penalty instead of a statutory incarceration period provided by statute for the charged offense.
¶31 The Court is mistaken in asserting that “[t]here was no sentence enhancement as that term is used in . . .
¶33 The Legislature effectively superseded this holding the following year when it passed House Bill 521 (2001), ultimately codified as
¶34 The original draft of House Bill 521 included a list of enhancing acts, omissions, or facts. Had this draft been enacted without amendment,
(3) An enhancing act, omission, or fact is an act, omission, or fact, whether stated in the statute defining the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and that allows or requires a sentencing court to add to, as provided by statute, an incarceration period provided by statute for the charged offense or to impose the death penalty instead of a statutory incarceration period provided by statute for the charged offense. An enhancing act, omission, or fact includes but is not limited to:
(a) bodily injury;
(b) serious bodily injury;
(c) property damage;
(d) use of a weapon or of a certain type of ammunition;
(e) the age of the victim or age difference between the defendant and the victim;
(f) monetary value or amount of loss, damage, or theft;
(g) commission of an offense for the benefit of, at the direction of, or in association with one or more other persons; and
(h) commission of an offense at or in a certain place or within a specified distance of a certain place.
(Emphases added.) The Senate Judiciary Committee amended the bill to delete the foregoing list. This was done not because the senators disagreed with the contents of the list, but because there was concern that the list might be misunderstood as exclusive (i.e., as containing all possible enhancing acts, omissions, or facts), despite the “is not limited to” language. S. Jud. Comm., Mins., 57th Reg. Sess., at 9-10 (Mont. Mar. 23, 2001).
¶35
¶36 It is presumed that the Legislature, when it passes legislation, is aware of existing law, including this Court’s decisions. Gaustad v. City of Columbus, 265 Mont. 379, 382, 877 P.2d 470, 472 (1994); Sampson v. Natl. Farmers Union Prop. & Cas. Co., 2006 MT 241, ¶ 20, 333 Mont. 541, 144 P.3d 797. The Legislature did not overturn our holding in Baker, ¶¶ 29-30, that
¶37 Accordingly, in light of Baker and the legislative history discussed above, there can be no doubt that the age difference between Ghostbear and A.T. is an “enhancing fact” for purposes of
¶38 The distinction the Court identifies is that Baker was “charged with a violation of
That during the summer months of 1997, at Sheridan County, Montana, the above-named defendant committed the offense of SEXUAL ASSAULT, a felony, in violation of Montana law, Section 45-5-502, MCA 1997, punishable by life imprisonment or by imprisonment in the state prison for a term of not less than two years or more than 100 years and a fine not to exceed Fifty Thousand Dollars ($50,000.00).
The facts constituting the offense are: The above-named defendant KENNETH WAYNE BAKER, knowingly subjected another person to sexual contact without consent. The victim is less than 16 years old and the defendant is three or more years older than the victim.
This language clearly incorporates subsection (3) of the sexual assault statute, which at the time stated: “If the victim is less than 16 years old and the offender is 3 or more years older than the victim . . . , the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000.”
¶39 The Second Amended Information in the present case similarly states:
COMES NOW, The Special Deputy Hill County Attorney and files this Information, charging the Defendant with the following offense:
Count I: Sexual Intercourse Without Consent . . . .
. . .
Or in the Alternative
Count I: Sexual Assault, a felony, in violation of §45-5-502(1)(3), MCA, when on or about a date or dates between January 1, 2011, and January 8, 2012, in Havre, Hill County, Montana, Defendant knowingly subjected another person to any sexual contact without consent of A.T. and when A.T. was unable to consent because she was less than 16 years of age.
PENALTY
Life imprisonment or incarceration for a term not less than four (4) years or more than one-hundred (100) years and/or a fine up to $50,000.00 . . . .
Notably, the correct age for inability to consent is 14, not 16.
¶40 There is simply no merit to the Court’s contention that Baker and Ghostbear were charged with different offenses. Opinion, ¶ 9 n.2. It makes no difference that the charge in the present case expressly cites
¶41 Accordingly, there is no question that Baker, like Ghostbear, was charged with a felony pursuant to
Section 45-5-502(3), MCA, merely sets forth age-related circumstances which enhance the punishment for sexual assault otherwise provided in § 45-5-502(2), MCA. Those age factors pertain only to the sentencing of a person convicted of sexual assault and, as a result, we conclude that Baker’s age in relation to that of the victim is not an element of the offense of sexual assault . . . .
Baker, ¶ 30 (emphases added). We reiterated this holding in State v. Tichenor, 2002 MT 311, ¶ 31, 313 Mont. 95, 60 P.3d 454: “age factor in sexual assault statute pertains only to sentencing and is not an element of the offense.” Nothing in our analysis in Baker indicates we were concerned with the statutory references contained in the Information—in particular, whether the prosecutor had expressly referenced
¶42 Compounding the problem, the Court’s proffered distinction between Baker and the present case nullifies
¶43 The age differential in
¶44 Because the “separate finding” requirement of
(2) This title is intended to provide for the just determination of every criminal proceeding. The purposes of this title are to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.
(3) Any irregularity in a proceeding specified by this title that does not affect the substantial rights of the accused must be disregarded.
Cf.
¶45 An error is “structural” if it affects the framework within which the trial proceeds. State v. Rogers, 2013 MT 221, ¶ 37, 371 Mont. 239, 306 P.3d 348. Structural error—for example, a biased judge or deprivation of the right to counsel—“‘necessarily renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’” Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 2551 (2006) (brackets omitted) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 1833 (1999)). Such error cannot be analyzed for prejudice and consequently is automatically reversible. State v. Stewart, 2012 MT 317, ¶ 45, 367 Mont. 503, 291 P.3d 1187; State v. Matt, 2008 MT 444, ¶¶ 31-32, 347 Mont. 530, 199 P.3d 244, overruled on other grounds by State v. Charlie, 2010 MT 195, ¶ 45, 357 Mont. 355, 239 P.3d 934. Trial error, on the other hand, is the type of error that typically occurs during the presentation of a case to the jury and that can be reviewed qualitatively for prejudice. Stewart, ¶ 45.
¶46 Failing to submit an element of the offense to the jury is trial error and, therefore, subject to harmless-error review. Recuenco, 548 U.S. at 219-20, 126 S. Ct. at 2551-52. I see no principled basis for concluding differently as to the “separate finding” requirement of
¶47 Failing to submit an element—or, in this case, an enhancing fact—to the jury is harmless if the court “‘finds beyond a reasonable doubt that the result “would have been the same absent the error.“’” Adams v. State, 2007 MT 35, ¶ 62, 336 Mont. 63, 153 P.3d 601 (quoting United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006), in turn quoting Neder, 527 U.S. at 19, 119 S. Ct. at 1838). “[I]f the record contains overwhelming and uncontroverted evidence supporting the sentencing factor,” then the error is harmless, but “if the defendant contested the omitted [fact] and raised evidence
¶48 Although it is not designated as such, the Court’s discussion at ¶ 13 of the Opinion is essentially a harmless-error analysis. As the Court points out, A.T. testified that she was eight years old at the time of trial, making her six or seven at the time of the offense. In Ghostbear’s interview with law enforcement, a recording of which was played at trial, he acknowledged that A.T. was just turning eight. In addition, he stated that his date of birth was in 1977, making him 33 or 34 at the time of the offense. At trial, Ghostbear was asked, “Did you drink when you were a kid?” to which he responded, “No, . . . I didn’t have a drink of alcohol until I was 18 years old.” The evidence of A.T.’s age and Ghostbear’s age was uncontroverted. The evidence established that A.T. was roughly six or seven at the time of the offense and Ghostbear was three or more years older than A.T. Indeed, no rational trier of fact could have concluded that A.T. was over 16 years old or that there was less than a three-year age difference between A.T. and Ghostbear.
¶49 On the record before us, I believe we can conclude, beyond a reasonable doubt, that the result would have been the same absent the error. Zepeda-Martinez, 470 F.3d at 913; Adams, ¶ 62. In other words, had the jury been asked to make the separate finding required by
¶50 Based on the foregoing analysis, I specially concur in the Court’s decision to reverse and remand for felony sentencing.
/S/ LAURIE McKINNON
Justice Beth Baker joins the Special Concurrence of Justice Laurie McKinnon.
/S/ BETH BAKER