State v. Ghostbear

• Decision Date: 22 July 2014
• Docket Number: No. DA 13–0081.,DA 13–0081.
• Citation: 338 P.3d 25,2014 MT 192,376 Mont. 500
• Parties: STATE of Montana, Plaintiff and Appellant, v. Edward Harold GHOSTBEAR, Defendant and Appellee.
• Court: Montana Supreme Court

376 Mont. 500

338 P.3d 25

2014 MT 192

STATE of Montana, Plaintiff and Appellant

v.Edward Harold GHOSTBEAR, Defendant and Appellee.

No. DA 13–0081.

Supreme Court of Montana.

Submitted on Briefs May 28, 2014.

Decided July 22, 2014.

Amended Oct. 23, 2014.

For Appellant: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Gina Dahl, Hill County Attorney, Karla Bosse, Special Deputy County Attorney, Havre, Montana.

For Appellee: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Edward Ghostbear was convicted of sexual assault after a jury trial. The State of Montana appeals from the District Court's post-trial decision that the misdemeanor penalty provided by § 45–5–502(2)(a), MCA, is the maximum sentence that can be imposed.¹ We reverse and remand.

¶ 2 The issue on appeal is whether the District Court's post-trial decision was correct.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In January 2012 the State charged Edward Ghostbear with one count of felony sexual intercourse without consent under § 45–5–503(4), MCA, and an alternative count of felony sexual assault under § 45–5–502(3), MCA. The victim in both counts was the 7–year–old daughter of Ghostbear's girlfriend. On October 30, 2012, the jury returned its verdict finding Ghostbear not guilty of sexual intercourse without consent and finding him guilty of felony sexual assault.

¶ 4 After the jury's verdict Ghostbear moved that the District Court sentence him to the misdemeanor penalty of a first conviction of sexual assault under § 45–5–502(2)(a), MCA. Ghostbear argued that the felony penalty in § 45–5–502(3), MCA, was simply a penalty enhancement for sexual assault that did not apply because the jury did not make a finding that the victim was younger than 16 and did not make a finding that Ghostbear was more than 3 years older under the provisions of § 46–1–401, MCA. The District Court agreed, concluding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) required the jury to make a specific finding as to the ages of Ghostbear and the victim before the felony offense provided in § 45–5–502(3), MCA, could apply. The District Court concluded that the State had not provided proof of the ages of Ghostbear and the victim, and that the jury had not made a factual finding as to the respective ages. The District Court concluded that Ghostbear could not be sentenced for felony sexual assault under § 45–5–502(3), MCA. The State appeals.

STANDARD OF REVIEW

¶ 5 A district court's interpretation of a statute is a conclusion of law which we review for correctness. Montana State Fund v. Simms, 2012 MT 22, ¶ 15, 364 Mont. 14, 270 P.3d 64 ; Briese v. Mont. Pub. Emp. Ret. Bd., 2012 MT 192, ¶ 11, 366 Mont. 148, 285 P.3d 550 ; Olson v. Jude, 2003 MT 186,¶ 34, 316 Mont. 438, 73 P.3d 809. We review a district court's findings of fact to determine whether they are clearly erroneous. Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175. A finding of fact may be clearly erroneous if it is not supported by substantial evidence in the record; if the district court misapprehended the evidence; or when our review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Brimstone, ¶ 20.

DISCUSSION

¶ 6 A person commits the offense of felony sexual assault by knowingly subjecting another person to “any sexual contact without consent,” and if the victim is less than 16 years old and the offender is 3 or more years older, or if the offender inflicts bodily injury. Section 45–5–502(1), (3), MCA. If the victim is less than 14 years old and the attacker is more than 3 years older, there can be no consent as a matter of law. Section 45–5–502(5)(a)(ii), MCA. An offender convicted of felony sexual assault under § 45–5–502(3), MCA, is subject to a term of not less than 4 years and up to life in the state prison, along with a fine up to $50,000. Section 45–5–502(3), MCA.

¶ 7 In Apprendi the United States Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363–64 (emphasis added); Adams v. State, 2007 MT 35, ¶ 52, 336 Mont. 63, 153 P.3d 601. Section 46–1–401, MCA, consistent with the holding in Apprendi, provides certain restrictions on the sentencing court before a penalty enhancement may be imposed. While the parties agree on appeal that § 45–5–502(3), MCA, is a sentence enhancement provision covered by § 46–1–401, MCA, and the rule in Apprendi, we conclude otherwise.

¶ 8 A “sentence enhancement” is a fact that increases the penalty for a crime “beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363–64. It is a fact not included in the statutory definition of the elements of the charged offense that allows the judge to increase the penalty provided by statute. Section 46–1–401(3), MCA. There was no sentencing enhancement for the District Court to apply or consider in this case.

¶ 9 The State charged Ghostbear with the crime of felony sexual assault, specifically under § 45–5–502(3), MCA, exposing him to the felony penalty prescribed by that statute. There is no other statutory provision that increases the possible penalty for a conviction under § 45–5–502(3), MCA. In this case there is no fact that the sentencing court can use to increase the penalty for a conviction under § 45–5–502(3), MCA, that is not in the elements of the offense set out in that statute. There was no sentence enhancement as that term is used in Apprendi or in § 46–1–401(3), MCA.²

¶ 10 The District Court properly instructed the jury. On appeal we consider the instructions as a whole to determine whether a district court fully and fairly instructed the jury on the applicable law. State v. Scarborough, 2000 MT 301, ¶ 47, 302 Mont. 350, 14 P.3d 1202.

¶ 11 The District Court instructed the jury that Ghostbear was presumed innocent and that the presumption could not be overcome unless the jury was convinced from all the evidence that he was guilty beyond a reasonable doubt. The District Court instructed that the verdict must be unanimous, and that the jury must unanimously agree upon the commission of the same specific act constituting the crime before convicting Ghostbear. The District Court instructed the jury that a statement made by Ghostbear outside the trial could be considered an admission or confession, and that an admission is a statement of fact pertinent to the issue and tending to prove guilt.

¶ 12 Further, the District Court instructed the jury on the elements of the crime of sexual assault: that the offense requires proof that the victim was subjected to sexual contact; that the victim did not consent; and that Ghostbear acted knowingly. The District Court instructed the jury in the words of § 45–5–502(5)(a)(ii), MCA, that “consent is ineffective if the victim is 14 years of age or younger and the defendant is 3 or more years older than the victim.”

¶ 13 While Ghostbear contends and the District Court determined that there was no evidence of his age and the age of the victim, the record shows otherwise. The State correctly notes that during trial the District Court admitted into evidence a recording and a transcript of an interview of Ghostbear by a law enforcement officer. Early in that interview Ghostbear stated that his date of birth was in 1977, making him 34 years old at the time of the offense. In addition, in that same interview Ghostbear acknowledged that the victim was just turning age 8, making her age 7 at the time of the alleged offense. The victim also testified that she was age 8. The jury heard this evidence and was able to corroborate the respective ages of Ghostbear and the victim because each of them testified at trial. The jurors were entitled to infer from what they observed that the ages of Ghostbear and the victim were as he acknowledged them to be in the admitted interview. The jurors were instructed that they could consider “the appearance of the witnesses on the stand.” The jurors saw, and therefore could consider, the appearance of Ghostbear as a mature man and the victim as a child. Ghostbear does not point to any contrary evidence of age in the record nor does he argue that there was any conceivable way that the jury could fail to conclude that the victim was under the age of 16 and that Ghostbear was more than 3 years older. Ghostbear does not contend that the respective ages were in any way contested during the trial.

¶ 14 Having been given these and other instructions, the jury returned a verdict that Ghostbear was guilty of “the charge of Sexual Assault, a Felony.” Under the instructions as given, the jury's guilty verdict required the jury to find the essential elements of sexual assault as charged in this case. Under the instructions as given, the jury could not have returned the conviction without determining as a matter of fact that the victim was under the age of 14 and that Ghostbear was more than 3 years older. By following the instructions and by returning a guilty verdict the jury necessarily found as facts the respective ages of Ghostbear and the victim. This constitutes felony sexual assault under § 45–5–502(3), MCA. The jury's verdict reflects a finding of the age disparity required by § 45–5–502(3), MCA.

¶ 15 The State proved the elements of the crime of felony sexual assault under § 45–5–502(3), MCA ; the District Court properly instructed the jury on the burden of proof and the elements of the crime; the jury returned its verdict that Ghostbear was guilty of “Sexual Assault, a Felony.” The prescribed range of punishment is set out in the statute, and there is no enhancement factor. It...