In re J.W.

• Citation: 2021 MT 291
• Decision Date: 09 November 2021
• Docket Number: DA 20-0580
• Parties: IN THE MATTER OF: J. W., A Youth.
• Court: Montana Supreme Court

2021 MT 291

IN THE MATTER OF: J. W., A Youth.

No. DA 20-0580

Supreme Court of Montana

November 9, 2021

Submitted on Briefs: September 22, 2021

APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Fallon, Cause No. DJ-2020-1 Honorable Nickolas C. Murnion, Presiding Judge

For Appellant:

Shandor S. Badaruddin, Shandor S. Badaruddin, PC, Missoula Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Darcy L. Wassmann, Fallon County Attorney, Baker, Montana

OPINION

JAMES JEREMIAH SHEA, JUDGE

¶1 Appellant Youth J.W. appeals from the jury verdict and November 13, 2020 Dispositional Order by the Sixteenth Judicial District Youth Court, Fallon County, finding J.W guilty of the offense of sexual intercourse without consent, a felony if committed by an adult; adjudicating J.W. a delinquent youth; and designating J.W. a serious juvenile offender. We review the following issues on appeal:

1. Whether the Youth Court abused its discretion when it refused to instruct the jury to consider youth characteristics in determining J.W.'s guilt.

2. Whether the Youth Court abused its discretion when it refused to instruct the jury on the legal age of consent.

3. Whether the youth court jury had sufficient evidence to convict J.W. of the offense of sexual intercourse without consent.

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 During the early summer of 2019, the victim, M.H., and her friend, S.D., met up with two boys, K.W. and the defendant J.W., to have a bonfire on J.W.'s family's ranch in Fallon County. J.W. was 14 years old and had just graduated from the eighth grade. The other teens were 16 and had just finished their sophomore year of high school. J.W., K.W., and S.D. were drinking beer and hard iced teas. M.H. was the only teen who did not have anything more than "a sip" to drink that night.

¶4 Sitting around the fire, the group played a few rounds of "Strip-Rock, Paper, Scissors" in pairs. One boy and one girl squared off at a time. Whenever a player lost a round, that player had to remove a piece of clothing. The game ended when one of the two players were "completely naked."

¶5 After some time and a few more drinks, the teens started playing a game called "Nervous." Also played in pairs with one boy and one girl, the game involved one player touching the other with his or her hands until the second player said "nervous." When a player said "nervous," the game ended, and that player lost. M.H. was the only teen who had never played the nervous game before, and she testified that she felt pressured to play. M.H. acknowledged that she did not say "nervous" when J.W. touched her backside, put his hand inside her underwear, and inserted one, and then two fingers into her vagina.

¶6 M.H. testified as follows regarding what happened after that point: J.W. asked her to sit on the side of his flatbed truck and she complied. J.W. pushed her down by her shoulders so that she was laying on her back. J.W. removed her pants and underwear before climbing onto the truck bed and inserting two fingers into her vagina. M.H. felt a sharp pain in her vagina and saw that J.W. was suddenly on top of her. She could see both of his hands. M.H. told J.W., "I'm nervous, I'm nervous," and, "Okay you can get off now." When J.W. did not get off, M.H. told him, "No, no," and tried to push him away with her arms. J.W. then lifted one of her legs and she said, "No," louder. When J.W. still did not get off, M.H. twisted around to free her leg and then kicked him off by pushing her foot against his chest. At that point, J.W. stopped and they both got dressed.

¶7 J.W. testified that he did not insert his penis into M.H.'s vagina; M.H. consented to J.W. inserting his fingers in her vagina; and he stopped as soon as she said, "Ow," "No not here," and that she "didn't want to do it there."

¶8 The witnesses largely corroborated M.H.'s story. K.W. testified that:

[M]e and [S.D.] were talking and then we heard [M.H.] say, "Nervous," and "Nervous," and then "Stop," and then [J.W.] we'd seen him like get off the pickup. I don't know if he got pushed off or what had happened but we were kinda (sic) like, oh what was that all about, we turned around and [J.W.] was puttin (sic) his pants on and [M.H.] was ta - putting [her] pants on.

¶9 S.D. testified: "I just saw him like shove her up against the truck and then him trying to go on and [M.H.] shoving him trying to su - get him off but . . . ." S.D. testified she then heard K.W. tell J.W. to "knock it off and that we needed to go."

¶10 The State filed a petition in the Youth Court on January 27, 2020, alleging that J.W. was a delinquent youth within the meaning of § 41-5-103(12)(a), MCA, because he committed an offense that, if committed by an adult, would constitute the criminal offense of sexual intercourse without consent. J.W. denied the allegations. The Youth Court held a jury trial in August 2020.

¶11 Prior to deliberation, the Youth Court refused to give four of J.W.'s proposed jury instructions. Three of the proposed instructions were based on language from the United States Supreme Court in Miller v. Alabama, 567 U.S. 460, 470-74, 132 S.Ct. 2455, 2464-66 (2012) (holding that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment), and Roper v. Simmons, 543 U.S. 551, 569-70, 125 S.Ct. 1183, 1195-96 (2005) (invalidating the death penalty for all juvenile offenders under the age of 18). These instructions would have allowed the jury to consider J.W.'s youth characteristics when determining J.W.'s culpability.

¶12 J.W.'s first proposed jury instruction provided:

This is a case where the accused is a child. The United States Supreme Court has determined, based on science and common sense, that children are different than adults in three significant ways: first, children lack maturity and a sense of responsibility; second, children are more susceptible to negative influences and outside pressures; and third, a child's character is not as full-formed as an adult.

Anyone who remembers being a teenager, who has been the parent or caretaker of a teenager, or who has observed adolescent behavior, knows intuitively what scientific research shows - that adolescents do not think or behave like adults; their brains are not yet fully developed in the areas that control impulses, ability to foresee the consequences of their actions, and to temper their emotions. These differences are characteristics that you may consider as you listen to the evidence in this case.

¶13 Counsel for J.W. argued that the proposed instruction "goes squarely to intent" and "helps the jury understand that there are differences between adults and children." In denying this proposed instruction, the Youth Court distinguished Miller, which required sentencing courts to factor in youth characteristics when potentially sentencing children to life without parole. The Youth Court stated, "I don't see where this is relevant to liability or culpability." The Youth Court determined that Montana has not adopted "this kind of instruction," the proposed jury instruction language "was for sentencing purposes," and it "would be confusing to the jury."

¶14 J.W.'s second proposed jury instruction provided:

In determining whether a child has acted reasonably you may consider that a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults. These attributes of youth often result in impetuous and ill-considered actions and decisions. Juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.

¶15 Counsel for J.W. argued that the instruction "goes directly to the knowingly requirement" of the alleged crime. The Youth Court denied the proposed instruction; agreeing with the State's argument that the instruction would confuse the jury because "we're not asking the jury . . . to determine whether anyone acted reasonably."

¶16 J.W.'s third proposed jury instruction provided:

A person acts knowingly when the person is aware of the person's conduct.

A knowing act is characterized by awareness of the consequences of that action. The youth here is an adolescent and one of the differences between adults and adolescents is that adolescents' brains are not fully developed in the areas that control impulses, foresee consequences, and temper emotions. Adolescents are susceptible to acting impetuously with little thought or consideration of consequences, a fact shown by brain development research as well as common sense. You may consider these attributes of adolescence when determining whether the youth acted knowingly.

¶17 Counsel for J.W. explained that "what this instruction tries to do is paint a better picture, a more complete picture that a youth's brain is perhaps less aware than an adult's brain." The Youth Court declined the instruction, stating, "Again, I believe that this goes more to a proper disposition." Likening the proposed instruction to Montana's rule that intoxication is not a defense, the Youth Court described the instruction as "almost [promoting] a new defense that adolescent brains are not fully developed in the areas that control impulses or see consequences and temper emotions."

¶18 The final instruction informed the jury that a person under 16 years old is legally incapable of consent. Counsel for J.W. argued the instruction was applicable in the case because, "Defense has already explained to the jury in opening statements about . . . the Youth's age at the time of the offense, really it's the heart of the Defense's...