State v. Grindheim, 02-667.

• Citation: 101 P.3d 267,2004 MT 311,323 Mont. 519
• Decision Date: 09 November 2004
• Docket Number: No. 02-667.,02-667.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Shane GRINDHEIM, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

101 P.3d 267

2004 MT 311

323 Mont. 519

STATE of Montana, Plaintiff and Respondent, v. Shane GRINDHEIM, Defendant and Appellant.

No. 02-667.

Supreme Court of Montana.

Submitted on Briefs February 10, 2004.

Decided November 9, 2004.

For Appellant: Torger S. Oaas, Lewistown, Montana.

For Respondent: Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, Thomas Meissner, County Attorney; Robert L. Deschamps, Special Deputy County Attorney, Lewistown, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Shane Grindheim (Grindheim) appeals from the jury verdict rendered in the Tenth Judicial District Court, Fergus County, finding him guilty of sexual intercourse without consent under § 45-5-503, MCA. We affirm.

¶ 2 Grindheim raises the following issues on appeal:

¶ 3 Did the District Court abuse its discretion in denying Grindheim's motion for directed verdict on the issue of penetration?

¶ 4 Did the District Court abuse its discretion by requiring Grindheim to choose between a continuance to prepare for a State witness or losing the opportunity for his expert to testify?

¶ 5 Did the District Court abuse its discretion by denying Grindheim's request to instruct the jury on a lesser included offense of endangering the welfare of children?

¶ 6 Did the District Court abuse its discretion in excusing a juror after the case had been submitted to the jury?

¶ 7 Did the District Court err in imposing sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 On August 24, 2001, E.S., who was 12 years old, traveled to Lewistown, Montana, and spent the evening at the home of Josh Poser (Poser) where her cousin Phil Fry (Fry) was also staying. Courtney Trafton (Trafton), who was likewise spending the night at Poser's home, brought blankets and a sleeping bag for E.S. to use as bedding. When Trafton and Fry went to bed, E.S. laid down on a couch in the living room.

¶ 9 Meanwhile, Grindheim, Sam Knox (Knox), and Rocky Stonehocker (Stonehocker), all from Denton, Montana, also decided to spend the evening at Poser's home because Grindheim had been living and paying rent there that summer and was in the process of moving out. Grindheim was 20 years old. That evening, all three drank alcohol and visited friends in the Lewistown area.

¶ 10 At one o'clock in the morning, Grindheim, Knox, and Stonehocker stopped by Poser's home. They were carrying beer and drinking, and left again shortly thereafter. Around four o'clock in the morning, the three men came back to Poser's house and were intoxicated. Knox went to bed on the living room floor and Stonehocker decided to sleep in the yard. Grindheim told E.S. he had a "claim" on the couch because he used to live there. Grindheim and E.S. ended up sharing the couch, each lying on opposite sides of the couch.

¶ 11 E.S. testified that over the next 30 minutes, Grindheim continually asked her to come under the covers, but that she had replied, "No." E.S. explained that Grindheim then grabbed her hand and tried to lure her under the covers without success, and that he began asking her to give him a "blow job." E.S. testified that at this point, Grindheim's pants were off and that she saw his erect penis. E.S. stated that she told Grindheim she did not want to do it, but that Grindheim continued to force her head down on his penis to perform oral sex. E.S. testified that as she turned her head, her cheek and then her mouth went on Grindheim's penis, which she stated was in her mouth about one-half of a second. E.S. pulled her head up, but Grindheim pushed it back down again, wherein E.S.'s mouth was on his penis a second time for less than one-half of a second. E.S. then pushed Grindheim away, ran into the bathroom, locked the door and stayed there for approximately one-half hour. When E.S. came out of the bathroom, Grindheim was no longer in the house, having gone out to the yard to sleep.

¶ 12 On the morning of August 25, 2001, E.S. left Poser's house and went to her aunt's home in Lewistown, where she saw her parents that afternoon. E.S. did not speak of the incident with Grindheim because she felt scared and did not want anyone to know. The following day, E.S. returned home to Denton and E.S.'s older sister, S.S., told their mother that she heard Grindheim state at a bachelor party they both attended in Lewistown the night before that E.S. gave "good head." E.S.'s mother contacted Officer Rick Vaughn (Vaughn) at the Fergus County Sheriff's Department, and insisted that E.S. speak to him about the incident.

¶ 13 Subsequently, Dave Sanders (Sanders), a captain with the Lewistown Police Department, advised Vaughn that he would handle the matter and thereafter asked Grindheim to come to the Fergus County Complex to discuss the incident. After Sanders read Grindheim his Miranda rights, Grindheim signed a waiver form and Sanders conducted a videotaped interview of Grindheim, wherein he explained that his penis was in E.S.'s mouth twice, for about thirty seconds each time.

¶ 14 On September 5, 2001, Grindheim was charged with sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. An Omnibus Hearing was held on February 4, 2002, and a trial by jury commenced on June 10, 2002. On Wednesday, June 12, 2002, the jury found Grindheim guilty. The District Court sentenced Grindheim on September 6, 2002, deferring imposition of sentence for six years, subject to a six-month incarceration in the county jail and other conditions.

¶ 15 On September 10, 2002, Grindheim filed a notice of appeal. On September 16, 2002, the District Court granted Grindheim's motion for stay of execution of his sentence pending appeal.

STANDARD OF REVIEW

¶ 16 We review evidence in a criminal trial in a light most favorable to the prosecution to determine whether the trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Martin, 2001 MT 83, ¶ 17, 305 Mont. 123, ¶ 17, 23 P.3d 216, ¶ 17. Furthermore, we will review a district court's denial of a motion for directed verdict in a criminal case for an abuse of discretion. State v. McMahon, 2003 MT 363, ¶ 11, 319 Mont. 77, ¶ 11, 81 P.3d 508, ¶ 11. If sufficient evidence exists for the trier of fact to find the elements of the charged offense beyond a reasonable doubt, no abuse of discretion results. State v. Landis, 2002 MT 45, ¶ 23, 308 Mont. 354, ¶ 23, 43 P.3d 298, ¶ 23. Moreover, an abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Bailey v. Beartooth Communs. Co., 2004 MT 128, ¶ 10, 321 Mont. 305, ¶ 10, 92 P.3d 1, ¶ 10.

¶ 17 This Court reviews jury instructions in criminal cases to "determine whether such instructions, as a whole, fully and fairly instruct the jury on the applicable law" and whether the district court abused its discretion. State v. Bowman, 2004 MT 119, ¶ 49, 321 Mont. 176, ¶ 49, 89 P.3d 986, ¶ 49 (citing State v. German, 2001 MT 156, ¶ 10, 306 Mont. 92, ¶ 10, 30 P.3d 360, ¶ 10). The district courts have broad discretion in formulating jury instructions. German, ¶ 10. This Court will not reverse the trial court unless the jury instructions prejudicially affect the defendant's substantial rights. State v. McCaslin, 2004 MT 212, ¶ 27, 322 Mont. 350, ¶ 27, 96 P.3d 722, ¶ 27.

¶ 18 The trial court has discretion to remove a juror and seat an alternate juror whenever the facts show the juror's ability to perform his duties is impaired. State v. Pease (1986), 222 Mont. 455, 469, 724 P.2d 153, 162-63. The reviewing court will not disturb the ruling unless the defendant shows bias or prejudice. Pease, 222 Mont. at 470-71, 724 P.2d at 163.

¶ 19 This Court reviews the imposition of a sentence in a criminal case solely for legality, determining whether the sentence is within the parameters of the sentencing statutes. State v. J.C., 2004 MT 75, ¶ 36, 320 Mont. 411, ¶ 36, 87 P.3d 501, ¶ 36. In reviewing a district courts findings of fact as to the amount of restitution, our standard of review is whether those findings are clearly erroneous. State v. Setters, 2001 MT 101, ¶ 16, 305 Mont. 253, ¶ 16, 25 P.3d 893, ¶ 16.

DISCUSSION

¶ 20 Did the District Court abuse its discretion in denying Grindheim's motion for directed verdict on the issue of penetration?

¶ 21 Grindheim contends that the District Court erred when it denied his motion for directed verdict because that State introduced insufficient evidence of penetration. Grindheim explains that "sexual intercourse" requires proof of penetration under 45-2-101(67)(a), MCA,¹ and that E.S.'s testimony regarding this element was ambiguous. To illustrate the ambiguity, Grindheim points to E.S.'s testimony whereby she explained that her mouth was "on" Grindheim's penis but that she also, in response to a leading question, testified Grindheim's penis was "in" her mouth. Grindheim additionally notes that there was no testimony that E.S.'s mouth was open at any time during the encounter.

¶ 22 The State responds by first noting that § 45-2-101(67)(b), MCA, provides that, for purposes of the act of sexual intercourse, "any penetration, however slight, is sufficient." Additionally, the State argues there was no ambiguity as to whether there was penetration because, in addition to E.S.'s testimony that Grindheim's penis was "on" and "in" her mouth twice briefly, Grindheim admitted in his statement to Sanders that his penis was in E.S.'s mouth twice, each time for about thirty seconds, and evidence was presented that Grindheim stated to S.S. that E.S. "did some mean head." In light of this evidence, the State contends that the District Court did not abuse its discretion when it denied Grindheim's motion for a directed verdict.

¶ 23 This Court reviews a district court's denial of a motion for directed verdict in a criminal case for an abuse of discretion. McMahon, ¶ 11. Here, the District Court denied Grindheim's motion...