*1
STATE OF MONTANA,
Respondent,
Plaintiff
WAYLAND PAUL HARRIS,
Appellant.
Defendant
No. 98-381.
February 4,
Submitted on Briefs
1999.
May 28,
Decided
1999.
For ena. Mazurek, Attorney General, Hon. P. Respondent: Joseph
For General, Paulson, Attorney Helena; Cassidy, Ass’t Bernie John Wheelis, Attorney, County B. County Deputy Lincoln James Attor- ney, Libby. Opinion GRAY delivered the of the Court.
JUSTICE (Harris) judgment from the en- Wayland appeals Paul Harris ¶1 Court, County, Lincoln on a tered the Nineteenth Judicial District him of incest. We affirm. jury finding guilty verdict following appeal: the issues on Harris raises ¶2 that, failing jury err in to instruct the 1. Did the District Court ¶3 incest, a ver- guilty jurors of the must reach unanimous find Harris specific act of incest? dict on at least one the concluding guilty Court err in verdict 2. Did the District ¶4 legally inconsistent with the verdict ac- charge the incest intercourse without consent? Harris of sexual quitting err in did not concluding Did the District Court verdict 3. ¶5 right protection? to equal Harris’ constitutional violate precluding err in not the State from us- 4. Did the District Court extrajudicial purposes impeachment statement ing Harris’ trial?
BACKGROUND (State) by amended infor- charged of Montana Harris The State offenses, that he had sex- allegations three each based on mation with daughter, Gwen Michelle Larson adopted with his ual relations (Gwen). charged amended information Harris sex- Count I of the consent, felony, alleged to have occurred on without a ual intercourse and November between November numerous occasions consent, intercourse without charged II him with sexual 1991. Count No- on numerous occasions between to have occurred felony, alleged a in- 1,1997. Count III him with 21,1991, January vember numerous occasions be- cest, have occurred on felony, alleged 1988 and November of tween jury acquitted the four-day trial in December of After a charges without consent sexual intercourse
Harris of the two the District subsequently Harris moved him of incest. found the on the charge and dismiss incest to set aside verdict Court contrary to the instruc- was inconsistent and that the verdict grounds violated his constitutional jury, and the conviction given tions motion, The District Court denied Harris’ equal protection. him, conviction and sentence. judgment and entered on the sentenced appeals.
DISCUSSION that, jury failing to instruct 1. Did the District Court err reach a jurors must unanimous ver- find Harris specific act of incest? dict on at least one deliberations, jury Court instructed the Prior to the District verdict to be unanimous and that all the law agree must in order to reach a verdict on each jurors twelve Harris, guilty. whether that verdict be or not Harris ar- against given the court should have a more in- gues charges because each of the in the struction. He asserts time the court encompassed lengthy periods, amended information *3 jurors they agree have instructed the were to should specific constituting at least one act unanimously performed that he period alleged charge the time in each to find him the offense offense, and that the court’s failure to do so was error. The guilty of the argument ap- failed this responds preserve that Harris State unanimity specific he did not offer a more instruction peal because given. the instruction object and did not of, any may appeal portion A not assert error on as to or party objection made an from, jury party instructions unless omission specified the matter ob- settling the instructions which at the time of 46-16-410(3), objection. Section jected grounds and the for the timely objection during to make a trial Additionally, the failure MCA. the cir- objection appeal on unless one of a waiver of constitutes 46-20-701(2), MCA, exists. Section in cumstances outlined § object to the una- 46-20-104(2), Harris concedes that he did not MCA. give the failure to a more given by the court or to nimity instruction MCA, cir- instruction, and that none of § statutes, he is barred to these pursuant here. cumstances exists however, us, to address urges appeal. this issue on raising from plain error review. law doctrine under the common this issue We have held notwithstanding failure to object to an alleged error and the inapplicability 46-20-701(2), MCA, may § we discretionarily review a claimed error which affects fundamental rights constitutional where failing may to review it result in a mani justice, fest miscarriage of leave question unsettled the of the funda mental proceedings fairness of the compromise or the integrity of the judicial (1996), process. Finley State v. 276 Mont. 915 P.2d however, 215. We further Finley, held in that we will use our in herent power plain error sparingly only review in exceptional meeting cases one of the above Finley, criteria. Mont.
P.2d at 215. Based on our us, review of the record before we conclude exceptional that this is not one of those warranting cases plain error review and we decline to address this issue. 13 2. Did the District Court err in concluding guilty verdict charge legally incest was not inconsistent with the verdict ac-
quitting Harris of sexual intercourse without consent? trial, Following Harris moved to set aside the verdict and dis- the incest charge, arguing legally miss that it was inconsistent for the to have found him not of the sexual intercourse without I, consent charge alleged Count but of the incest al- III. leged Count The District Court denied the motion and Harris asserts error. procedure 15 We observe that the criminal provide statutes do not However, 46-16-702, MCA,
for motions to set aside the verdict.
per
§
mits a defendant
to move for a new trial and authorizes a trial court
addressing
modify
change
such a motion
by finding
a verdict
a
defendant not
of the offense. Consequently, we deem Harris’
46-16-702,
motion a motion for a new trial under
MCA. See State v
482, 485, 923
524, 526.
Bell
We
a
review district
court’s
a motion
ruling on
for new trial to determine whether the
Bell,
court abused its discretion.
P.2d at 526. *4 above, As stated Harris was with two counts of sexual 45-5-503(1), MCA, consent,
intercourse without which is defined knowingly having as sexual intercourse without consent with an- of person. alleged other Count was based on acts sexual intercourse occurring Gwen between November of with 1988 and November II alleged while Count was based on acts of sexual intercourse 21, 1991, occurring with Gwen between November charges 1997. The reflect the separate statutory definition of the purposes term “without consent” for establishing of the offense of sex- ual intercourse without consent. Count I encompasses period a time age and, when Gwen was under of pursuant to § 45-5-501(l)(b)(iii), MCA, legally incapable was of consenting to sex- Consequently, ual intercourse. in order to prove the offense charged I, in Count the State required prove only was that Harris and Gwen during had sexual intercourse the time period alleged; the lack of con- sent element of the presumed offense was based on evidence that age Gwen was under the of 16. that, 17 Harris contends because lack of consent presumed un- I,
der Count the not verdict on that charge necessarily means jury found the proved State had not he and Gwen had sexual intercourse between November of 1988 and November 1991. He further notes that the charge alleged incest in Count III alleged acts sexual intercourse a time which period encompassed the period 21,1991. same through November of 1988 November He ar- that, gues jury therefrom because the found no acts of sexual inter- course occurred 21,1991, between November of 1988 and November legally impossible jury it is for the to have found him of incest under Count III. person A commits if incest he or she marries, with,
knowingly with, cohabits has sexual intercourse or ancestor, descendant, has sexual contact... with an a brother or blood, sister any of the whole or half or stepson stepdaughter. Section MCA. Count III of the amended information al- leged that Harris had by having committed incest sexual intercourse Gwen, a descendent by adoption, on numerous occasions be- tween November of 1988 and January Although incest included the period alleged I, same time in Count it also in- period years cluded an additional of over five which did not form the for Count I. notwithstanding that Count III al- ' intercourse, leged numerous acts of sexual State was only prove one act of sexual intercourse between Harris and his adopted daughter during period alleged jury in Count III for the properly to have found that Harris committed incest. it is con- finding ceivable found that an *5 402 and Gwen after occurred between Harris sexual intercourse
act of 1991, and, indeed, testimony about a 21, Gwen’s November 1,1997, provided suffi- which occurred act of intercourse result, con- support finding. to such a As a we of record cient evidence jury acquit for the to legally inconsistent that it was not clude find him consent under Count intercourse without of sexual III. incest under Count guilty of that correctly Court concluded hold that the District We not inconsistent with legally the incest verdict on
guilty without consent. Harris of sexual intercourse acquitting the verdict hold, therefore, did not abuse its discretion that the court further We and dismiss the in to set aside the verdict Harris’ motion denying a new trial. have deemed a motion for charge which we cest did concluding the verdict the District Court err 3. Did equal protection? to right violate Harris’ constitutional him of finding the verdict moved to set aside Harris also that, necessarily it fol if he were incest on the the State’s failure to guilty of incest and also was lowed that Gwen right his constitutional that offense violated her for prosecute the State’s deci Court concluded The District protection. equal prosecutorial exercise of was a reasonable Gwen prosecute sion not motion to we deem Harris’ Again, denied the motion. discretion 46-16-702, under motion for a new trial verdict to be a set aside the ruling to determine whether MCA, the District Court’s and we review Bell, P.2d at its discretion. See the court abused question issue involves a resolution of an when 526. of the law to law, interpretation the court’s we review constitutional 234, ¶9, Koehn, MT v. 1998 it correct. See State whether is determine omitted). (citations 9, 143, 87, P.2d 9¶ 966 291 Mont. ¶ “knowingly... if he or she the offense of incest A commits person descendant, ancestor, or a brother an intercourse with... has sexual blood, stepdaughter.” Sec- any stepson or or half of the whole sister found charged with —and MCA. Harris was tion daughter. The rela- adopted intercourse with having sexual of— relationship include the incest statute forth in the tionships set and, thus, daughter adopted adoption child parent 45-5-507(1), MCA. Harris See § a descendant. be considered would intercourse to have sexual makes it a crime statute also notes that the guilty of in- that, he was found because and contends an ancestor with Gwen, necessarily follows it intercourse having sexual cest for
403
guilty of incest for the same act because he is her ances-
that Gwen is
He
once the
found that sexual intercourse oc-
argues
tor.
curred,
failure
prosecute
the State’s
Gwen for
offense consti-
treatment of members of the same class and violated
disparate
tuted
of the
equal protection
his constitutional
law.
determining
A
has broad discretion in
whether or
prosecutor
(1984),
121, 126, 692
P.2d
prosecute.
not to
State v.Lemmon
Mont.
selectivity
the conscious exercise of some
in the en
laws,
more,
criminal
without
does not
forcement of
constitute a viola
Lemmon,
rights.
tion of constitutional
Mont.
692 P.2d at
also,
458;
Stanko,
323, 51, 292
see
State v.
1998 MT
Mont.
¶
51;
424, 428, 740
P.2d
Pease
State
*6
(1978),
659, 661;
322, 328-29,
State v. Maldonado
176 Mont.
578 P.2d
296, 300. A person asserting
rights
that his or her constitutional
have
by
prosecution
been violated
selective
allege
prove
must
deliberately
was
unjustifiable
based on an
standard such
selection
as
race,
Stanko,
religion
arbitrary
51; Pease,
or other
classification.
428, 740
661; Lemmon,
126, 692
Mont. at
P.2d at
214 Mont. at
P.2d at
458; Maldonado,
¶24 equal protection of the laws was by pros- violated the State’s failure to alleged ecute Gwen for he has not less shown —that —much prosecute the State’s decision not to any Gwen was based on arbi- trary, unjustifiable result, standard. aAs we conclude that Harris has that right equal protection established his constitutional to of the law has been violated. hold, therefore, correctly We the District Court con
cluded the verdict did not violate Harris’ constitutional right equal did protection denying not abuse its discretion in Harris’ motion. precluding 4. Did the District Court err in not the State from us- extrajudicial ing purposes impeachment statement trial? arrest, by At the time of Harris’ he was interviewed two law en-
forcement officers and admitted an act of sexual intercourse with trial, suppress Gwen. Prior to Harris moved to his statement on the involuntary that it in rights and obtained violation of his as by guaranteed the Fifth Amendment to the United States Constitu- sought tion. His motion use of the statement both as preclude sub- stantive evidence of the commission of the offenses and for testify purposes impeachment should he decide to at trial. The Dis- trict Court concluded that the statement could not be used in the case-in-chief it involuntary, granted State’s because was portion expressly of Harris’ motion. The court stated that its limited suppression order did not address whether Harris’ statement could impeachment be used the State for purposes the event Harris at trial. Harris requested ruling testified never a further from the prior during court on this issue either to or trial. complied The State with the suppression order at trial and did any testimony during regarding
not elicit its case-in-chief Harris’ ad- that he had sexual mission intercourse with Gwen. Harris testified at and, trial that he had never had sexual intercourse with Gwen examination, attorney inquired regarding his direct his the state- he made ment when arrested he had committed one act of sexual prior intercourse with Gwen. Harris testified that the statement was cross-examination, questioned false. On the State Harris further re- garding prior appeal statement. Harris contends on that the Dis- failing suppress prior trict Court erred in the use of his statement purposes. for impeachment The State asserts that Harris waived his to raise this issue he introduced appeal prior because evidence of statement him requesting ruling
self without a further from the District Court re admissibility impeachment of the statement for garding pur poses. response, Ingraham, In Harris relies on State v. 1998 MT and State v.Fuhrmann 278 Mont. arguing pretrial suppress 925 P.2d that his motion to preserve appeal this issue for without a further mo was sufficient objection tion at trial. *7 Fuhrmann, and held that the Ingraham filing In both we of a
¶30
pretrial
seeking
motion in limine
to exclude evidence was sufficient to
objection
the defendant’s
to the admission of the
preserve
evidence
required
and the defendant was not
to make an
appeal
for
additional
36;
objection
Ingraham,
when the evidence was offered at trial.
¶
Fuhrmann,
403,
cases,
at
¶31 impeachment Harris’ statement could be used for regarding whether
405 Essentially, court reserved purposes. ruling the its on the motion for time, by a later as authorized MCA. Harris did not re- and, a on his motion quest ruling consequently, thereafter when he statement, the content his regarding prior testified he waived his admissibility result, objection to its for use as As a impeachment. unlike presented Ingraham Fuhrmann, the situations in Harris’ pretrial suppress preserve argument appeal. motion did not his for testimony prior about the statement ¶32 by direct brought examination statement into evidence put own volition. We will not a district in court error an action in the appealing party acquiesced actively which See participated. 244, 24, 291 147, Clay, 24, 967 370, v. MT State Mont. P.2d ¶ We conclude that Harris waived his appeal admissi bility impeachment of his statement for use as and we decline to ad this issue further. dress Affirmed. TURNAGE,
CHIEF JUSTICE JUSTICES HUNT and TRIEWEILER concur. specially
JUSTICE NELSON concurs. 2,3 I with the opinion concur Court’s as to Issues 4.1 concur result reached as Issue but not on the expressed in Rather, issue, the Court’s on opinion. this I would reach and rule on argument. the merits of Harris’ Weaver, 167, 290 58, 964 In State 1998 MT Mont. P.2d we
addressed, plain error analysis, via the same issue raised here Weaver, through Harris. 40. Harris was tried in ¶¶ December and, accordingly, July because Weaver was handed down on Harris, his neither counsel nor the trial court had the benefit our Having unanimity decision. addressed same instruction issue in on the plain Weaver the basis of error rationale out in set State v. Finley (1996), 208, I logical Mont. can see no reason why we should not also do the here. thing same (as nevertheless, that, would, Having said hold that a specific opposed general) instruction was not warranted Weaver, specific unanimity case. In we held that a instruction is this in cases where different criminal acts are one words, In is to be instructed that it must reach a count. other Weaver, least act for each count. unanimous verdict one 38-40. ¶¶
406 rule, Notwithstanding adoption general our of this we also rec- exception an where
ognized closely they part so connected that form of one the criminal acts are transaction, Thus, “[s]eparate offense. the same thus one they one crime if occur within a rela- may also result but acts ... tively span short time ”.
Weaver; (citing People Cal.App.3d v. Gordon 165 35¶ 174, 184-85). cases, general In these sorts of 854-55, 212 Cal.Rptr. Weaver, 29. will suffice. See instruction view, exception ap- “continuous course of conduct” my In this Here, the record reflects that Harris had judice. the case sub plies shortly after her 13th birth- commencing with Gwen relations sexual eight years for thereafter. While Gwen tes- day regular and on a couple her a of months after began having sex with tified that the last act of sex occurred menstruating age 13 and that began she 1, 1997, intervening could not otherwise remember January she on her. Unlike the victims in that Harris had sex with dates Weaver, that a few dis- on Gwen involved more the sexual assaults Weaver, 7-17, testified that Harris 36. Gwen incidents. See ¶¶ creet per times as often as two to four frequently, from her demanded sex away were from their iso- her mother and brother whenever week physi- either lated, part For the most Harris would home. backwoods him her, having her into sex with frighten intimidate her or cally force order sentencing Court noted in its As the District these occasions. ‘sex slave’ daughter as his virtual adopted held his Defendant “[t]he location, isolating her from her years in a remote a number of These facts dis- attending her from school.” friends, preventing Weaver. the instant case from tinguish closely connected Harris’ criminal acts were so conclude transaction, and thus one and the same they part formed of one course of con- incest were a “continuous that his acts of offense —i.e. of in- and convicted of one count only charged with Harris was duct.” 1,1997,... [he] 1988 and cest, that “between November albeit intercourse with Gwen... knowingly had sexual many ... on occasions there was no and record here On the evidence daughter.” adopted that Harris would be con- confusion or possibility genuine dif- concluding that he committed jurors different as a result of victed (9th Weaver, Echeverry United States (quoting See ferent acts. 975). criminal conduct oc- While Harris’ 1983), F.2d Cir. thus, over a arguably, eight year period and, over an curred — period so repeated illegal acts were span time short —his to be closely properly and so connected as frequently perpetrated running offense. single as a continuous or viewed *9 here, the record I would hold that the trial court Accordingly, on failing give specific instruction. would did not err in this basis. affirm as to Issue join foregoing REGNIER in the LEAPHART and
JUSTICES special concurrence.