State v. Clawson, 89-108

• Citation: 46 St.Rep. 1792,239 Mont. 413,781 P.2d 267
• Decision Date: 19 October 1989
• Docket Number: No. 89-108,89-108
• Parties: STATE of Montana, Plaintiff and Respondent, v. Shawn Drew CLAWSON, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 267

781 P.2d 267

239 Mont. 413

STATE of Montana, Plaintiff and Respondent, v. Shawn Drew CLAWSON, Defendant and Appellant.

No. 89-108.

Supreme Court of Montana.

Submitted on Briefs Aug. 24, 1989.

Decided Oct. 19, 1989.

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Mike McGrath, County Atty., Carolyn A. Clemens, Deputy County Atty., Helena, for plaintiff and respondent.

WEBER, Justice.

Defendant, Shawn Drew Clawson, was charged with aggravated kidnapping, aggravated assault, sexual intercourse without consent, and attempted deliberate homicide in the District Court for the First Judicial District, Lewis and Clark County. The aggravated assault charge was dismissed. The jury found defendant guilty as charged of the offenses of aggravated kidnapping, sexual intercourse without consent, and attempted deliberate homicide. Defendant was sentenced to 100 years for aggravated kidnapping, 100 years for attempted deliberate homicide, 40 years for sexual intercourse without consent, 100 years as a persistent felony offender, and 10 years for the use of a weapon, to run consecutively, making a total of 350 years. He was also declared ineligible for parole. Defendant appeals. We affirm.

Defendant presents three issues on appeal:

1. Did the District Court err in ruling that sexual intercourse without consent is not a lesser included offense of aggravated kidnapping, and therefore not dismissing the charge of aggravated kidnapping?

2. Did the District Court err in finding that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment?

3. Did the District Court err in denying defendant's motion for mistrial when the prosecution addressed punishment in its rebuttal closing argument?

The victim, L.B., lived in Helena, Montana. Near midnight, on June 10, 1988, L.B. received a phone call from a man stating that he had borrowed some car parts and tools from her husband and wanted to return them that night. L.B. felt uneasy because of the call and called her husband who was working in the state of Idaho. He did not recall loaning tools to anyone. Her husband called later to make sure she was all right. He also asked a male friend, Mr. E., in Helena to check on L.B.

Mr. E. called L.B. shortly after the call from her husband. While he was talking to her, the defendant burst into the house through a bedroom window. L.B. testified that she recognized defendant as the man who had come to her home a week earlier requesting a tour of it because it was for sale, and also as the man who made the phone call earlier that night. As he approached her, she screamed "Oh no, Oh no." Defendant put a knife to L.B.'s throat and then hung up the phone. He forced her to leave clad only in a nightshirt and without slippers, and took her to his car several blocks away. She made several unsuccessful escape attempts.

Because there are no significant factual issues raised by the defendant we will not detail the very extensive criminal conduct of the defendant which extended over a period of many hours, starting after 1:00 a.m. Beginning in a vacant bus near her home and then continuing in various locations around the city, defendant repeatedly committed acts of sexual intercourse without consent on L.B., and in addition, by force required her to take part in various deviate sexual acts. Defendant repeatedly tortured L.B., choked her a number of times, burned her body with cigarettes and beat her physically with a club. Finally, after driving L.B. several miles out of town, defendant slammed her head into a rock and stabbed her 15 times in her chest and abdomen. We emphasize that the record is devoid of any evidence, or even suggestion of evidence, which demonstrates consent or participation in any of the conduct by L.B. The bestiality of the conduct on the part of defendant is overwhelmingly present in the record. We are unable to comprehend the lack of consideration for another human being which was demonstrated by defendant, and which is apparent even from his own testimony. In the event that defendant finds it appropriate to seek further review, we invite any federal court to review the extensive transcript in order to gain an adequate understanding of the facts of this case.

Because of his fear of being caught, defendant concocted a story for L.B. to tell Mr. E. in order to explain why she hung up on him. Defendant forced L.B. to call Mr. E. and to relay the story about friends with whom she left to go drinking in Butte. L.B. attempted to tip off Mr. E. by asking questions about his wife although he was unmarried. Mr. E. had already called the police and sent them to L.B.'s home. Defendant also forced L.B. to call the police with the same phony story. As dawn approached, the defendant became nervous and drove L.B. out of Helena into the foothills near Canyon Ferry. He stopped when L.B. said that she had to go to the bathroom.

L.B. testified that she next awoke in the bottom of a ravine, clad in only her nightshirt, and bleeding from her wounds. She testified that she did not move at all that day because she was not strong enough to get up. At dusk she walked for about half an hour, and during that night alternated between walking and sleeping. Cactus spines punctured her bare feet. In the morning she slowly made her way out of the ravine to a road. Two people in a pickup truck drove past and saw her sitting on the side of the road with blood on her head. They rushed her to the hospital, where it was discovered she had been stabbed 15 times in her chest and abdomen. The hospital physician who treated L.B. testified that she had several "potentially fatal stab wounds," had lost a "minimum of 25% of her blood volume," and that her head wounds would have been potentially fatal had they not "occurred on a particularly hard portion of the skull." He testified that L.B. probably would not have survived more than a few hours, had she not been rescued.

I

Did the District Court err in ruling that sexual intercourse without consent is not a lesser included offense of aggravated kidnapping, and therefore not dismissing the charge of aggravated kidnapping?

Defendant contends that pursuant to Sec. 46-11-502, MCA, sexual intercourse without consent is a lesser included offense of aggravated kidnapping and that he cannot be convicted of both without resulting in double jeopardy. The basis of his claim is that the "without consent" element of sexual intercourse without consent is established by the kidnapping because the taking of someone against her will is without consent. At the close of the State's case-in-chief, defendant moved to dismiss the charge of aggravated kidnapping for that reason.

The State argues that in determining if one offense includes another, the statutory elements of each offense must be analyzed to determine if each offense contains an element different from the other. The State refers to a number of Montana cases and in particular relies upon State v. Thornton (1985), 218 Mont. 317, 708 P.2d 273. Defendant agrees that Thornton sets forth the appropriate standard. In Thornton the standard is discussed at some length as follows:

Defendant's argument relies upon the holding found in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, which states:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not."

The first sentence of Sec. 46-11-502, MCA, states: "When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense." The statute goes on to enumerate some exceptions to this statement. Defendant, however, has not indicated which exception he relies on, but his argument appears to center around exception (1). This exception states: "[Defendant] may not, however, be convicted of more than one offense if ... one offense is included in the other."

In a series of recent cases this Court has clarified the application of the Blockburger rule and Sec. 46-11-502. To determine if one offense is includable within another, the analysis looks to the statutory elements, not the particular factual situation. (Citations omitted.) If each offense contains an element different than the other there is no inclusion, even though there may be a substantial overlap in proof. (Citations omitted.)

The State maintains that the statutory definition of sexual intercourse without consent does not require the purpose to facilitate commission of a felony as defined in this case for aggravated kidnapping. In a similar manner, the statutory definition of aggravated kidnapping as here charged, does not require sexual intercourse without consent, but only the purpose to facilitate commission of a felony. We agree.

Under Sec. 45-5-303(1)(a) and (c), MCA, the offense of aggravated kidnapping is committed when 1) a person knowingly or purposely 2) without lawful authority, 3) restrains another person 4) by the use of threats or physical force, 5) with the purpose to facilitate commission of any felony. Section 45-5-503(1), MCA, provides that a person commits the offense of sexual intercourse without consent when he 1) knowingly, 2) has sexual intercourse, 3) without consent with a person of the opposite sex. We look to the statutes to determine if each offense requires proof of a fact which the other does not. State v. Madera (1983), 206 Mont. 140, 670 P.2d 552.

To prove aggravated kidnapping the State must prove the kidnapping was committed with the purpose to facilitate commission of any felony. The State need not prove the actual...