City of Missoula v. Zerbst

• Decision Date: 05 May 2020
• Docket Number: DA 18-0434
• Citation: 2020 MT 108,400 Mont. 46,462 P.3d 1219
• Parties: CITY OF MISSOULA, Plaintiff and Appellee, v. John Anthony ZERBST, Defendant and Appellant.
• Court: Montana Supreme Court

400 Mont. 46

462 P.3d 1219

2020 MT 108

CITY OF MISSOULA, Plaintiff and Appellee,

v.John Anthony ZERBST, Defendant and Appellant.

DA 18-0434

Supreme Court of Montana.

Submitted on Briefs: February 26, 2020

Decided: May 5, 2020

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jon Bennion, Chief Deputy Attorney General, Helena, Montana, Jim Nugent, Missoula City Attorney, Carrie L. Garber, Deputy City Attorney, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 John Anthony Zerbst appeals his conviction for sexual assault. He asserts that the Missoula Municipal Court erred when it instructed the jury on a definition of consent from the 2017 sexual assault statute and not the applicable 2015 statute. We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Zerbst was charged in Missoula Municipal Court with misdemeanor sexual assault for a disputed incident that occurred in July 2017. Zerbst and Katheryn, the complainant, had been in an on-and-off again relationship and were living together at the time, though they were separated. According to Zerbst, they were still intimate within a week of the reported incident.

¶3 Katheryn testified that on the day of the incident, Zerbst started touching her feet and then moved up her thighs and hips. Katheryn testified that she pushed him back, said "stop," and slapped John’s chest. She testified that he got on top of her and started to touch her upper body, including her breasts. She testified that she had not given John permission at any point to touch her for any reason.

¶4 Zerbst told police that he previously had given Katheryn massages because she has a medical condition causing her body to swell in the heat. On the day of the incident, it was hot and Zerbst said he gave Katheryn a massage on her legs and shoulders to alleviate the discomfort. He admitted that his hands were in the vicinity of Katheryn’s pelvic region and also may have brushed her breasts. He asserts that once Katheryn told him to stop, he stopped.

¶5 Zerbst contends that Katheryn interacted with a Missoula police officer the next day and did not say that anything inappropriate happened between her and Zerbst. He claims that two days after the incident occurred, Katheryn became upset with him, and police were called for a welfare check. Katheryn then told officers about the alleged assault. Zerbst maintains that he consistently told the officers he had massaged Katheryn to help with her swelling and discomfort and stopped touching Katheryn after she told him to stop.

¶6 The City of Missoula charged Zerbst with sexual assault in Municipal Court. At trial, the court instructed the jury, over Zerbst’s objection, on the definition of "consent" contained in recent amendments to the sexual assault statute.

¶7 The jury found Zerbst guilty of sexual assault. Zerbst appealed to the Fourth Judicial District Court, Missoula County, alleging that the Municipal Court failed to apply the correct law when instructing the jury on the elements of the claimed offense. The District Court held that the instructions, taken as a whole, fully and fairly instructed the jury regarding the applicable law. Finding no instructional error that affected Zerbst’s substantial rights, the court denied his appeal.

STANDARDS OF REVIEW

¶8 In an appeal from a municipal court, a district court acts as an intermediate court of appeal; the appeal is confined to review of the record and questions of law. Sections 3-5-303 and 3-6-110, MCA. In a subsequent appeal, we review the case as if the appeal had been filed directly with this Court, without deferring to the district court’s order on appeal. State v. Holland , 2019 MT 128, ¶ 7, 396 Mont. 94, 443 P.3d 519 ; See City of Missoula v. Williams , 2017 MT 282, ¶ 8, 389 Mont. 303, 406 P.3d 8.

¶9 Trial courts have broad discretion in formulating jury instructions, "ultimately restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law." State v. Miller , 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625 (citing State v. Archambault , 2007 MT 26, ¶ 25, 336 Mont. 6, 152 P.3d 698 ). See State v. Shegrud , 2014 MT 63, ¶ 7, 374 Mont. 192, 320 P.3d 455 (citing State v. Matz , 2006 MT 348, ¶ 13, 335 Mont. 201, 150 P.3d 367 ). If the jury instructions prejudicially affect the defendant’s substantial rights, the error is not harmless. Shegrud , ¶ 7 (citing Matz , ¶ 13 ); see State v. Kaarma , 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609 ("To constitute reversible error, any mistake in instructing the jury must prejudicially affect the defendant’s substantial rights."); State v. Cybulski , 2009 MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7.

¶10 "Jury instructions that relieve the State of its burden to prove every element of the charged offense beyond a reasonable doubt violate the defendant’s due process rights." State v. Iverson, 2018 MT 27, ¶ 11, 390 Mont. 260, 411 P.3d 1284 (citing Miller , ¶ 11 ; Carella v. California , 491 U.S. 263, 265, 109 S. Ct. 2419, 2420, 105 L.Ed.2d 218 (1989) ). Whether a defendant’s due process rights were violated is a question of law that we review for correctness. Miller , ¶ 11 (citing State v. McCaslin , 2004 MT 212, ¶ 14, 322 Mont. 350, 96 P.3d 722 ).

DISCUSSION

¶11 1. Did the given instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case?

¶12 We first consider the instructions as a whole to determine whether the Municipal Court fully and fairly instructed the jury. State v. Sanchez , 2017 MT 192, ¶ 11, 388 Mont. 262, 399 P.3d 886 (citing Kaarma , ¶ 7 ). It is well-established that in criminal cases, the law in effect at the time of an alleged offense applies in any subsequent criminal prosecution. State v. Daniels , 2003 MT 30, ¶ 17, 314 Mont. 208, 64 P.3d 1045. For Zerbst’s charged offense, which allegedly occurred in July 2017, that would be the 2015 version of the Montana Code Annotated.

¶13 Sexual assault is knowingly subjecting another to "sexual contact without consent." Section 45-5-502(1), MCA (2015).¹ Zerbst proposed instructing the jury that "without consent" has its ordinary meaning. The City proposed a jury instruction for the definition of "consent" mirroring Senate Bill 29, which passed in the 2017 legislative session and became effective October 2017, after the incident occurred. S. 29, 65th Leg., Reg. Sess. § 2 (Mont. 2017). The instruction stated:

The term "consent" means words or overt actions indicating a freely given agreement to have sexual contact and is further defined but not limited by the following:

(i) An expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn;

(ii) A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent;

(iii) Lack of consent may be inferred based on all of the surrounding circumstances and must be considered in determining whether a person gave consent.

A victim is incapable of consent if the victim is:

(i) mentally disordered or incapacitated;

(ii) physically helpless; or

(iii) overcome by deception, coercion, or surprise.

¶14 The trial court further instructed the jury that resistance is not necessary to show lack of consent. Zerbst objected to the proposed consent definition instruction, alleging it was an incorrect statement of law. He asserts that the Municipal Court erred when it gave the 2017 statutory definition of consent instead of the 2015 "ordinary meaning" definition. State v. Stevens , 2002 MT 181, ¶ 59, 311 Mont. 52, 53 P.3d 356 (citing State v. Detonancour , 2001 MT 213, ¶ 64, 306 Mont. 389, 34 P.3d 487 ) ("The ordinary meaning of ‘without consent’ applies to the offense of sexual assault.").

¶15 Zerbst asserts that by changing the law and giving consent a "legalistic" definition, the Legislature intended to give that element something other than its previous "ordinary" meaning. He argues that under the "ordinary meaning" definition applicable in this case, the question is not whether someone falls into a particular category—rendering him or her incapable of consent as a matter of law—but whether the person actually assents or approves. According to Zerbst, no such mandatory, categorical rule existed under the 2015 ordinary meaning of consent as applied to the offense of sexual assault. Zerbst asserts that the instruction was reversible error; because it allowed the jury to convict him based on categorical definitions of who was, by law, incapable of consent, it lowered the City’s burden to prove the consent element in the offense of sexual assault. The instructions did not require the jury to consider witness credibility or to resolve material factual disputes necessary to determine the element of consent.

¶16 The City, on the other hand, argues that the jury was instructed consistent with the ordinary meaning of consent. It asserts that the Municipal Court was resolving any ambiguity in the terms "without consent" and "consent" when it adopted the City’s proposed jury instruction. The City insists that the definition of "without consent" for sexual intercourse without consent is narrower than the ordinary meaning, and thus the standards from the narrower definition apply within the "ordinary meaning" of consent for sexual assault.

¶17 As the City recognizes, prior to the 2017 amendments, the "without consent" standards in crimes of sexual assault and sexual intercourse were not the same. Section 45-5-501(1), MCA (2015), defined "without consent" for the crime of sexual intercourse without consent, but that definition did not apply to the crime of sexual assault. The "consent" element for the latter offense had its "ordinary meaning." See Stevens , ¶ 59 ("Unlike in the case of...