State v. Bullman

• Decision Date: 18 February 2009
• Docket Number: No. DA 07-0248.,DA 07-0248.
• Citation: 2009 MT 37,203 P.3d 768,349 Mont. 228
• Parties: STATE of Montana, Plaintiff and Appellee, v. Erin Clyde BULLMAN, Defendant and Appellant.
• Court: Montana Supreme Court

203 P.3d 768

2009 MT 37

349 Mont. 228

STATE of Montana, Plaintiff and Appellee, v.Erin Clyde BULLMAN, Defendant and Appellant.

No. DA 07-0248.

Supreme Court of Montana.

Submitted on Briefs February 20, 2008.

Decided February 18, 2009.

For Appellant: Jim Wheelis, Chief Appellate Defender; Shannon McDonald, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Kalispell, Montana.

Justice JOHN WARNERdelivered the Opinion of the Court.

¶ 1Erin Bullman was found guilty by a jury of the offenses of incest and sexual assault committed against his stepdaughter, J.T.The District Court sentenced Bullman to serve concurrent sentences of 40 years at Montana State Prison, with the last 20 years suspended.The District Court also ordered that he shall not be eligible for parole until he has completed Phase I and Phase II of the prison's sexual offender treatment program and that on any parole or probation he shall abide by listed conditions.Bullman appeals his conviction and sentence on numerous grounds.We restate the issues as follows:

¶ 2 1.Did the State introduce sufficient evidence that Bullman was married by common law to J.T.'s mother so that he could be convicted of incest?

¶ 3 2.Did the District Court commit plain error in its instruction to the jury concerning what is necessary to find that a common law marriage existed?

¶ 4 3.Did the District Court err in not instructing the jury to disregard a portion of J.T.'s testimony?

¶ 5 4.Did the District Court err in restricting Bullman's eligibility for parole?

¶ 6 5.Did the District Court err in imposing conditions on Bullman's parole?

¶ 7 6.Did the District Court err in imposing conditions on Bullman's suspended sentence?

¶ 8 7.Did the District Court sentence Bullman more harshly because he did not admit guilt?

¶ 9 8.Did the District Court err in imposing restitution?

BACKGROUND

¶ 10 Bullman lived with J.T.'s mother and their children as a family for seven years in Kalispell.J.T. is the child of a previous relationship of her mother.Bullman and J.T.'s mother have three children.Bullman provided for the household's support.For the last four years of their relationship, J.T.'s mother did not work outside of the home.

¶ 11 Bullman testified that he had been engaged to be married to J.T.'s mother since 2002, but they had not married.Bullman testified that he did not call J.T.'s mother his wife, but that they referred to each other as Lord and Lady and that he identified her as "my Lady."J.T.'s mother testified that they lived together "as husband and wife."She said she rarely called Bullman her husband, although Bullman sometimes called her his wife.

¶ 12 Bullman said he purchased a house and J.T.'s mother's name was on the deed.Bullman testified that prior to 2005he filed his tax returns as single and so did J.T.'s mother.Bullman did not claim J.T. as a dependent when filing his taxes.He did sometimes claim one or more of the other children as dependents on his tax returns.Utilizing Bullman's power of attorney, J.T.'s mother filed tax returns jointly with Bullman for the 2005 and 2006 tax years when Bullman was incarcerated.J.T.'s mother filed for and was granted a dissolution of her marriage to Bullman in October 2006.The record reflects Bullman submitted an objection to the validity of the marriage to the Clerk of the District Court, but it was not filed because he did not attach a certificate of service.

¶ 13 J.T. told her biological father that Bullman sexually abused her.Her biological father contacted law enforcement.J.T. testified that Bullman sexually molested her for approximately three years and five months, beginning when she was nearly ten years old.She testified that the first instance of abuse took place in a tent in their backyard and that thereafter the abuse took place continuously, once or twice a week, in various locations within the two houses they lived in, including the bathrooms, J.T.'s bedroom, Bullman's bedroom, and the living room.She said Bullman abused her when her mother was asleep or in another room, usually in the evening or in the morning before Bullman left for work and J.T. left for school.

STANDARDS OF REVIEW

¶ 14 In a criminal case, a motion for dismissal for insufficiency of the evidence under § 46-16-403, MCA, is only appropriate if, viewing the evidence in a light most favorable to the prosecution, no evidence exists upon which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.State v. Bomar,2008 MT 91, ¶ 13, 342 Mont. 281, 182 P.3d 47;State v. Swann,2007 MT 126, ¶ 16, 337 Mont. 326, 160 P.3d 511.We review a district court's denial of such a motion de novo, because evidence is either sufficient or it is not.Swann,¶¶ 16-19.When considering the sufficiency of the evidence, we will not substitute our judgment for that of the trier of fact, because the trier of fact views the evidence firsthand, observes the demeanor of the witnesses, and weighs the credibility of each party.State v. Maetche,2008 MT 184, ¶ 14, 343 Mont. 464, 185 P.3d 980;State v. Shields,2005 MT 249, ¶ 20, 328 Mont. 509, 122 P.3d 421.

¶ 15We review jury instructions to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case.State v. Dasen,2007 MT 87, ¶ 34, 337 Mont. 74, 155 P.3d 1282.

¶ 16We first review conditions of probation in a sentence for legality.Then, because sentencing statutes authorize sentencing judges to impose conditions on deferred or suspended sentences that constitute "reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society,"§ 46-18-201(4), MCA, the reasonableness of such conditions will be reviewed for an abuse of discretion.State v. Ashby,2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164.

DISCUSSION

¶ 171.Did the State introduce sufficient evidence that Bullman was married by common law to J.T.'s mother so that he could be convicted of incest?

¶ 18Section 45-5-507, MCA, provides that a person commits the offense of incest if he knowingly has sexual intercourse with, or has sexual contact with, a stepdaughter.Bullman argues that the State did not present sufficient evidence to prove that he was married to J.T.'s mother, so J.T. was not his stepdaughter.Thus, he cannot be guilty of incest.The State contends that it presented sufficient evidence for the jury to find that Bullman and J.T.'s mother were married at common law and therefore the conviction of incest is lawful.

¶ 19 Montana recognizes common law marriage.Section 40-1-403, MCA.To establish a common law marriage, the party asserting the existence of the marriage must prove that: (1)the parties were competent to enter into a marriage; (2)the parties assumed a marital relationship by mutual consent and agreement; and (3)the parties confirmed their marriage by cohabitation and public repute.In re Estate of Ober,2003 MT 7, ¶ 9, 314 Mont. 20, 62 P.3d 1114(citingMatter of Estate of Hunsaker,1998 MT 279, ¶ 32, 291 Mont. 412, 968 P.2d 281).

¶ 20 Bullman contends that the evidence is insufficient for a reasonable trier of fact to conclude he was married to J.T.'s mother as they did not mutually consent to the marriage and they did not hold themselves out to the public as husband and wife.He asserts that the only evidence of a common law marriage introduced by the state is tax returns filed jointly after Bullman was incarcerated, a divorce decree filed over his objection, and the testimony of J.T.'s mother that Bullman sometimes called her his wife.

¶ 21 The evidence that Bullman and J.T.'s mother were married at common law is circumstantial.Circumstantial evidence is that which tends to establish a fact by proving another and which, though true, does not of itself conclusively establish that fact but affords an inference or presumption of its existence.Section 26-1-102(1), MCA.When circumstantial evidence is susceptible to two reasonable interpretations, one which supports guilt and the other which supports innocence, the trier of fact determines which interpretation is most reasonable.State v. Rosling,2008 MT 62, ¶ 36, 342 Mont. 1, 180 P.3d 1102;State v. Hall,1999 MT 297, ¶ 22, 297 Mont. 111, 991 P.2d 929.Circumstantial evidence alone may be sufficient to obtain a conviction.State v. Southern,1999 MT 94, ¶ 92, 294 Mont. 225, 980 P.2d 3;State v. Vukasin,2003 MT 230, ¶ 20, 317 Mont. 204, 75 P.3d 1284.Circumstantial evidence must only be of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt, and all facts and circumstances must be considered collectively.Rosling,¶ 36;Southern,¶ 92.

¶ 22 The facts that Bullman lived with J.T.'s mother as husband and wife for years, they had children together, he supported her and the children including J.T., and that he purchased a house and J.T.'s mother was "on the deed," are circumstances that, when viewed in a light most favorable to the prosecution, tend to support the conclusion that the couple mutually consented and agreed to a marital relationship.While Bullman testified he was not married, the testimony of J.T.'s mother that he sometimes called her his wife in front of others, if believed, is a circumstance that strongly tends to establish mutual consent and agreement to a marriage, and that the couple held themselves out as married.J.T.'s testimony that Bullman assumed a father-daughter relationship with her and asked her to call him "dad" is a circumstance that tends to prove that he consented to a marriage with her mother.

¶ 23 There is, as Bullman contends, evidence in the record indicating he did not consent to a marriage.However, the jury weighed the testimony and...