State v. Black

• Citation: 891 P.2d 1162,52 St.Rep. 215,270 Mont. 329
• Decision Date: 23 March 1995
• Docket Number: No. 94-253,94-253
• Parties: STATE of Montana, Plaintiff and Respondent, v. Paul Oran BLACK, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1162

891 P.2d 1162

270 Mont. 329

STATE of Montana, Plaintiff and Respondent, v. Paul Oran BLACK, Defendant and Appellant.

No. 94-253.

Supreme Court of Montana.

Submitted on Briefs March 16, 1995.

Decided March 23, 1995.

Dennis G. Loveless, Helena, for appellant.

Joseph P. Mazurek, Atty. Gen., Cregg W. Coughlin, Asst. Atty. Gen., Mike McGrath, Lewis and Clark County Atty., Helena, for respondent.

GRAY, Justice.

Paul Oran Black (Black) appeals from his conviction by the First Judicial District Court, Lewis and Clark County, of the offense of sexual assault, a felony. We conclude that the District Court did not err in convicting Black of an offense with which he was not specifically charged, that the evidence is sufficient to support the conviction, and that Black was afforded effective assistance of counsel. Therefore, we affirm.

In 1987, Black rented a portion of the shop in which Gary Russell operated an automotive repair business in Helena, Montana; the shop was immediately adjacent to Russell's residence. Russell's ten-year-old son, G.R., became acquainted with Black when he visited his father in the shop. G.R. testified that Black gave him several gifts and would grab his buttocks while he was in the shop.

While on a fishing outing with G.R. at Ten Mile Creek, Black pulled down his pants and masturbated in front of G.R. He asked G.R. to expose his penis and, after initially refusing, G.R. did so; Black neither touched G.R. nor asked G.R. to touch him.

During two subsequent outings to Ten Mile Creek, Black told G.R. to pull down his pants and get on his knees; according to G.R., Black then entered him from behind. G.R. also testified to another "entering from behind" incident which occurred at Black's house and was interrupted when Russell arrived with a vehicle he had been repairing.

G.R. testified that he experienced extreme pain during these incidents and bled after each. After each incident, Black said that what they had done was "perfectly natural" and told G.R. not to tell anyone. G.R. testified that he felt threatened by Black. G.R. did not reveal the incidents to anyone until he suddenly remembered them in September of 1993.

The State of Montana (State) charged Black with sexual intercourse without consent, in violation of § 45-5-503, MCA. Through his counsel, Black notified the State of his intent to rely on an alibi defense. The case was tried to the District Court sitting without a jury.

The court acquitted Black of the charged offense, finding the evidence insufficient to establish beyond a reasonable doubt that Black actually penetrated G.R.'s anus. It found him guilty, however, of felony sexual assault in violation of § 45-5-502, MCA. Black was sentenced to fifteen years' imprisonment, with five years suspended upon certain conditions. Black appealed. Subsequent events are not at issue in this case.

1. Did the District Court err in convicting Black of sexual assault?

Black advances three fundamental challenges to his conviction of the offense of sexual assault. First, he argues that the District Court was without authority to convict him of an offense with which he was not charged. Second, he asserts that the charging document was insufficient to serve as the basis for a conviction of the offense of sexual assault. Finally, he contends that his constitutional due process rights were violated by the conviction for sexual assault.

We note at the outset that the issue of whether sexual assault is a lesser included offense of sexual intercourse without consent is not before us in this case. Black did not raise the issue in the District Court. Moreover, while he makes a passing reference to the existence of the issue in his opening brief on appeal, that brief contains neither argument nor legal authority relating to the issue, as required by Rule 23(a)(4), M.R.App.P. Indeed, the entirety of Black's argument in his opening brief relating to the court's authority to convict him of an uncharged offense is premised upon sexual assault being a lesser included offense of sexual intercourse without consent. It is only in his reply brief that Black argues that sexual assault is not a lesser included offense of sexual intercourse without consent. Furthermore, unlike cases such as State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832, the parties to this case have not raised or argued the plain error doctrine, in either its statutory or judicially-created form, insofar as that doctrine might provide a basis for our consideration of the issue. Under these circumstances, that issue is not properly before us and we specifically do not address it here. Instead, we assume for purposes of this opinion that sexual assault is a lesser included offense of sexual intercourse without consent.

a. Was the District Court authorized to convict Black of the lesser included offense of sexual assault?

Section 46-16-607(1), MCA, provides in pertinent part that a "defendant may be found guilty of an offense necessarily included in the offense charged...." The language of the statute is so plain as to need no interpretation. See Curtis v. Dist. Court of 21st Jud. Dist. (1994), 266 Mont. 231, 234, 235, 879 P.2d 1164, 1166 (citation omitted). Because we assume for purposes of this case that sexual assault is a lesser included offense of sexual intercourse without consent, the statute provides clear and express authority for Black's conviction of the offense of sexual assault.

Black relies on § 46-16-607(2), MCA, and the 1991 Commission Comment to the statute in making a circuitous argument regarding when lesser included offense instructions may, may not and must be given and how those issues relate to this case. Little discussion of this argument is necessary.

We note first that, by its terms, § 46-16-607(2), MCA, relates only to jury trials. Questions relating to instructing the jury simply do not arise in bench trials. Thus, § 46-16-607(2), MCA, is inapplicable here.

For the same reason, the Commission Comment stating in part that "[t]his statute is a newly developed provision intended to regulate a jury's consideration of lesser included offenses" also is inapplicable to this case involving a trial to the court. In addition, we note that the portion of the Comment on which Black relies--allowing a lesser included instruction "only upon a party's request" and when warranted by the evidence--appears to vary the terms of § 46-16-607(2), MCA, which provides that a lesser included offense instruction must be given upon a party's request when sufficient evidence supports the instruction.

Black also argues that State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370, supports his position. Like § 46-16-607(2), MCA, Sheppard is inapplicable to this appeal from a bench trial because it addresses only questions relating to a trial court's responsibilities in instructing a jury on lesser included offenses. Those responsibilities are not relevant where the trial court is deciding questions of both law and fact pursuant to §§ 46-16-103 and 46-16-110(3), MCA, and, as a result, no instructions are given.

We conclude that § 46-16-607(1), MCA, authorizes the conviction of a criminal defendant for a lesser included offense. Under the circumstances of this case, therefore, we hold that the District Court was authorized to convict Black of the offense of sexual assault.

b. Did the charging document provide a sufficient basis for a conviction of the offense of sexual assault?

Black asserts that the information charging him with the offense of sexual intercourse without consent did not provide him with notice sufficient to enable him to prepare his defense to the uncharged offense of sexual assault. His argument is not persuasive.

Section 46-11-401, MCA, sets forth the requirements which must be contained in the charging document. Here, the information charging Black with sexual intercourse without consent meets the statutory requirements; Black does not contend otherwise. He argues that he could not be convicted of the offense of sexual assault because that charge was not specifically included in the information and, as a result, he did not have sufficient notice of the possibility of a conviction of that offense.

As discussed above, § 46-16-607(1), MCA, unambiguously and expressly authorizes a defendant's conviction of an offense included in the charged offense. The statute itself provides the notice that a conviction for a lesser included offense is possible. Because we assume for purposes of this case that sexual assault is a lesser included offense of sexual intercourse without consent, Black had notice via the information and § 46-16-607(1), MCA, that he could be convicted of the lesser included offense.

While we have not previously addressed the precise issue of notice vis-a-vis § 46-16-607(1), MCA, the California Supreme Court did so succinctly in People v. Lohbauer (1981), 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183. There, the California court determined that the requisite notice is afforded where an offense is necessarily included within the statutory definition of the charged offense and a conviction of the included offense is statutorily authorized. Lohbauer, 173 Cal.Rptr. at 454, 627 P.2d at 184.

Nor do the Montana cases on which Black relies support his position. State v. Kills on Top (1990), 243 Mont. 56, 71, 793 P.2d 1273 1283, State v. Matson (1987), 227 Mont. 36, 43, 736 P.2d 971, 975, and State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 438, all state the general rules regarding the necessity of reasonably apprising the accused of the charges against him in the information so that a person of common understanding would know what offense is being charged. None of those cases involved the issue now before us regarding notice of lesser included offenses vis-a-vis § 46-16-607(1), MCA.

Black also advances arguments, as he did in challenging the District Court's authority to...