State v. Rosling, 05-222.

Citation180 P.3d 1102,2008 MT 62,342 Mont. 1
Decision Date26 February 2008
Docket NumberNo. 05-222.,05-222.
PartiesSTATE of Montana, Plaintiff and Appellee, v. Jared Lee ROSLING, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

For Appellant: William F. Hooks, Attorney at Law, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Leo Gallagher, Lewis & Clark County Attorney, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Jared Lee Rosling appeals from his conviction and sentence in the District Court for the First Judicial District, Lewis and Clark County, on charges of deliberate homicide, aggravated kidnapping, aggravated burglary, tampering with or fabricating physical evidence, and criminal possession of dangerous drugs (methamphetamine). We affirm.

¶ 2 We restate the issues on appeal as follows:

1. Did the District Court err in denying Rosling's motion to dismiss all of the charges for insufficient evidence?

2. Is the parole-eligibility restriction on Rosling's sentence illegal?

3. Is Rosling's sentence illegal because the prosecutor referred to a swastika tattoo on Rosling's back during the sentencing hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On the morning of Sunday, February 1, 2004, at approximately 8:00 a.m., Richard Dooley arrived at the home of his 21-year-old daughter, Jessica Dooley, in Helena, Montana. He had plans to go snowmobiling with a friend that morning, and he went to Jessica's house to pick up his snowmobiles, which were kept on a trailer in the driveway. After securing the trailer to the back of his pickup, Richard went inside the house. Upon entering, he smelled smoke and immediately began searching for its source. He eventually found Jessica's naked body lying dead on the bathroom floor with her feet toward the door. A plastic bag had been wrapped around her head and fastened with a ligature. Magazines had been placed under her legs and set on fire. Richard used a fire extinguisher to put out the fire and then went outside the house and called 911. The time at this point was approximately 8:20 a.m.

¶ 4 An examination of the crime scene suggested that Jessica had been attacked in her bedrbom, where she defecated, and then ended up in the bathroom, where she was stabbed numerous times. Investigators found very little blood in the bedroom; however, they found fecal matter on the bed and on an article of clothing. It appeared that the clothing may have been used to wipe up some of the fecal matter. There also was fecal matter on the bedroom floor, which appeared to have "some directionality" to it. In the bathroom, investigators observed blood on the walls, on the countertop, in the sink, and in the area surrounding the bathtub. They also found two t-shirts on the countertop and a pair of blue shorts in the sink. One of the officers noted that fecal matter was "mixed in with the blood and the shorts" in the bathroom sink. It was later determined that Jessica typically slept in shorts and a t-shirt.

¶ 5 An autopsy revealed evidence of neck compression or strangulation, possibly to the point that Jessica lost consciousness. The medical examiner, Dr. Gary Dale, testified in this regard that it is "not uncommon" for people to defecate while being choked. However, Dale concluded that strangulation was not the cause of Jessica's death. Rather, the cause of death was multiple cutting and stab wounds. He observed about 67 stab wounds and 28 cutting or incised wounds on her body. With respect to some of the cuts on Jessica's hands, Dale concluded that "she could have been conscious at the time grabbing at the instrument," i.e., the cuts "potentially" were defensive wounds. But with the numerosity of the wounds, he could not rule out that her hands "may have just been in proximity to" the instrument. With respect to the plastic bag placed over Jessica's head, he concluded that this was done postmortem.

¶ 6 The State ultimately charged Rosling with five felony offenses: Count I — deliberate homicide, in violation of § 45-5-102(1)(a), MCA, or, in the alternative, Count II — deliberate homicide, in violation of § 45-5-102(1)(b), MCA (commonly known as the felony-murder rule); Count III — aggravated kidnapping, in violation of § 45-5-303(1)(c), MCA; Count IV — aggravated burglary, in violation of § 45-6-204(2)(b), MCA; Count V — tampering with or fabricating physical evidence, in violation of § 45-7-207(1)(a), MCA; and Count VI — criminal possession of dangerous drugs (methamphetamine), in violation of § 45-9-102, MCA.1 A jury trial was held October 4 through October 18, 2004, and the State's evidence revealed the following.

¶ 7 The evening prior to Jessica's death (January 31, 2004), Rosling, Jessica, and several friends were drinking at local bars in Helena and at a party in a private residence in East Helena. In addition to drinking alcoholic beverages, Rosling also used methamphetamine that night. Toxicology reports indicated that Jessica was intoxicated at the time of her death but that she had not ingested any drugs.

¶ 8 At the party in East Helena, several people, including Rosling and Jessica, played a game called "quarters," which involved flicking a quarter at an opposing player's knuckles, sometimes resulting in cuts and blood on the player's hands. Both Rosling and Jessica received cuts on their hands while playing this game.

¶ 9 The party broke up at around 4:00 or 5:00 a.m. the following morning (February 1). Some people stayed at the East Helena residence and watched a movie or fell asleep. Others headed back to Helena. Rosling and a friend, Ryan Hill, discussed going skiing later in the day. Rosling then drove Jessica and another friend, Mike Taylor, back to their vehicles at the Valley Hub bar on the north side of Helena. Jessica sat in the front seat; Taylor sat in the back seat. Rosling dropped Taylor off first, but Taylor did not observe where Rosling and Jessica went after that. Taylor arrived home between 5:30 and 6:00 a.m. and played a game of cribbage with his landlord before going to bed.

¶ 10 The State called one of Jessica's neighbors, who testified that at approximately 6:00 a.m. on February 1, she got up to let her dog out and happened to see a car being parked across the street from her house. The neighbor saw someone get out of the driver's side of the car, but since it was still dark at that hour, she could not make out whether it was a man or a woman and she could not see where the person went. In addition, she testified that while she could not make out any details of the car at that hour, she was able to do so by about 7:00. The neighbor later identified Rosling's car as the car she had seen parked across the street. The neighbor further testified that at approximately 8:00, she saw a man matching Rosling's general description returning "very quickly" to the car from the direction of Jessica's house and driving away. The neighbor observed that the man was carrying a paper sack in one hand.

¶ 11 One of the investigating officers testified that there were fresh shoeprints in the snow along the garage and in the back yard of Jessica's house. The direction of the shoeprints indicated that someone had walked behind the garage, climbed over a chain link fence into the back yard, and proceeded to a back patio area. The officer did not find any return path, i.e., fresh tracks leading from the back to the front of the house. However, the officer found fresh shoeprints in the driveway area leading away from Jessica's house in the direction of where Rosling's car had been parked. Whereas the spacing of the shoeprints along the garage and in the back yard indicated that the person had "a normal walk" or "maybe a little shorter than a walk," the spacing of the shoeprints across the driveway indicated that the person was "in a hurry or running."

¶ 12 The State's evidence indicated that Rosling then went to Wal-Mart, arriving at about 8:20 a.m. Although he had been wearing jeans earlier that night (a security videotape obtained from Lucky Lil's showed him wearing jeans at about 1:30 a.m.), he entered Wal-Mart wearing long underwear. According to a computer-generated receipt the police obtained from Wal-Mart, Rosling purchased thermal socks, boxer shorts, and sweatpants at 8:35 a.m. Rosling then went to Target, where he purchased two compact discs. Rosling returned to Wal-Mart and purchased a birthday card at 10:27 a.m. He then went to Shopko and, at 11:15 a.m., purchased gloves, deodorant, and a soft drink.

¶ 13 Rosling eventually left Helena and went to Great Divide Ski Area, arriving at approximately noon. Hill and Taylor arrived about an hour later, and Hill skied several runs with Rosling. Hill testified that he brought up Jessica's murder several times, but Rosling did not have anything to say about it. Instead, Rosling talked about the new ski gear he had just purchased. Rosling did tell Hill that he had left Jessica at the Valley Hub bar along with Taylor and then slept in his car for a couple of hours. Rosling also said that his girlfriend, Janis Hazlitt, would not let him in her house that morning.

¶ 14 Hazlitt testified that Rosling left her house at 8:00 or 9:00 the evening of January 31 to return some movies they had rented and pick up some others. However, he did not return home as planned. Hazlitt called Rosling and learned that he had run into some friends. Hazlitt did not see Rosling again until he returned home from skiing at around 4:00 p.m. the following day. She testified that when she had last seen Rosling the previous evening, he was wearing a coat, jeans, and a long-sleeved shirt and when he returned the following day, he was wearing the same coat but new sweatpants and a different shirt. Upon arriving home, Rosling took a shower and laundered his clothes. At about 7:15 p.m., a detective with...

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