State v. Harris

• Decision Date: 28 May 1999
• Docket Number: No. 98-381.,98-381.
• Citation: 983 P.2d 881,1999 MT 115
• Parties: STATE of Montana, Plaintiff and Respondent, v. Wayland Paul HARRIS, Defendant and Appellant.
• Court: Montana Supreme Court

983 P.2d 881

1999 MT 115

STATE of Montana, Plaintiff and Respondent, v. Wayland Paul HARRIS, Defendant and Appellant.

No. 98-381.

Supreme Court of Montana.

Submitted on Briefs February 4, 1999.

Decided May 28, 1999.

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass't Attorney General, Helena, Montana, Bernie Cassidy, Lincoln County Attorney, James B. Wheelis, Deputy County Attorney, Libby, Montana, For Respondent.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Wayland Paul Harris (Harris) appeals from the judgment entered by the Nineteenth Judicial District Court, Lincoln County, on a jury verdict finding him guilty of incest. We affirm.

¶ 2 Harris raises the following issues on appeal:

¶ 3 1. Did the District Court err in failing to instruct the jury that, to find Harris guilty of incest, the jurors must reach a unanimous verdict on at least one specific act of incest?

¶ 4 2. Did the District Court err in concluding that the guilty verdict on the incest charge was not legally inconsistent with the verdict acquitting Harris of sexual intercourse without consent?

¶ 5 3. Did the District Court err in concluding that the verdict did not violate Harris' constitutional right to equal protection?

¶ 6 4. Did the District Court err in not precluding the State from using Harris' extrajudicial statement for purposes of impeachment at trial?

BACKGROUND

¶ 7 The State of Montana (State) charged Harris by amended information with three offenses, each based on allegations that he had sexual relations with his adopted daughter, Gwen Michelle Larson (Gwen). Count I of the amended information charged Harris with sexual intercourse without consent, a felony, alleged to have occurred on numerous occasions between November of 1988 and November 21, 1991. Count II charged him with sexual intercourse without consent, a felony, alleged to have occurred on numerous occasions between November 21, 1991, and January 1, 1997. Count III charged him with incest, a felony, alleged to have occurred on numerous occasions between November of 1988 and January 1, 1997.

¶ 8 After a four-day trial in December of 1997, the jury acquitted Harris of the two sexual intercourse without consent charges and found him guilty of incest. Harris subsequently moved the District Court to set aside the verdict and dismiss the incest charge on the grounds that the verdict was inconsistent and contrary to the instructions given the jury, and the conviction violated his constitutional right to equal protection. The District Court denied Harris' motion, sentenced him, and entered judgment on the conviction and sentence. Harris appeals.

DISCUSSION

¶ 9 1. Did the District Court err in failing to instruct the jury that, to find Harris guilty of incest, the jurors must reach a unanimous verdict on at least one specific act of incest?

¶ 10 Prior to deliberations, the District Court instructed the jury that the law required the jury verdict to be unanimous and that all twelve jurors must agree in order to reach a verdict on each charge against Harris, whether that verdict be guilty or not guilty. Harris argues that the court should have given a more specific unanimity instruction. He asserts that, because each of the charges in the amended information encompassed lengthy time periods, the court should have instructed the jurors that they were required to agree unanimously that he performed at least one specific act constituting the offense during the time period alleged in each charge to find him guilty of the offense, and that the court's failure to do so was error. The State responds that Harris failed to preserve this argument for appeal because he did not offer a more specific unanimity instruction and did not object to the unanimity instruction given.

¶ 11 A party may not assert error on appeal as to any portion of, or omission from, jury instructions unless the party made an objection at the time of settling the instructions which specified the matter objected to and the grounds for the objection. Section 46-16-410(3), MCA. Additionally, the failure to make a timely objection during trial constitutes a waiver of the objection on appeal unless one of the circumstances outlined in § 46-20-701(2), MCA, exists. Section 46-20-104(2), MCA. Harris concedes that he did not object to the unanimity instruction given by the court or to the failure to give a more specific instruction, and that none of the § 46-20-701(2), MCA, circumstances exists here. Thus, pursuant to these statutes, he is barred from raising this issue on appeal. Harris urges us, however, to address this issue under the common law doctrine of plain error review.

¶ 12 We have held that, notwithstanding the failure to object to an alleged error and the inapplicability of § 46-20-701(2), MCA, we may discretionarily review a claimed error which affects fundamental constitutional rights where failing to review it may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings or compromise the integrity of the judicial process. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215. We further held in Finley, however, that we will use our inherent power of plain error review sparingly and only in exceptional cases meeting one of the above criteria. Finley, 276 Mont. at 138, 915 P.2d at 215. Based on our review of the record before us, we conclude that this is not one of those exceptional cases warranting plain error review and we decline to address this issue.

¶ 13 2. Did the District Court err in concluding that the guilty verdict on the incest charge was not legally inconsistent with the verdict acquitting Harris of sexual intercourse without consent?

¶ 14 Following trial, Harris moved to set aside the verdict and dismiss the incest charge, arguing that it was legally inconsistent for the jury to have found him not guilty of the sexual intercourse without consent charge alleged in Count I, but guilty of the incest charge alleged in Count III. The District Court denied the motion and Harris asserts error.

¶ 15 We observe that the criminal procedure statutes do not provide for motions to set aside the verdict. However, § 46-16-702, MCA, permits a defendant to move for a new trial and authorizes a trial court addressing such a motion to modify or change a verdict by finding a defendant not guilty of the offense. Consequently, we deem Harris' motion a motion for a new trial under § 46-16-702, MCA. See State v. Bell (1996), 277 Mont. 482, 485, 923 P.2d 524, 526. We review a district court's ruling on a motion for a new trial to determine whether the court abused its discretion. Bell, 277 Mont. at 485, 923 P.2d at 526. Furthermore, the District Court's determination that the verdicts were not inconsistent under the law involves a question of law. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Bell, 277 Mont. at 486, 923 P.2d at 526.

¶ 16 As stated above, Harris was charged with two counts of sexual intercourse without consent, which is defined in § 45-5-503(1), MCA, as knowingly having sexual intercourse without consent with another person. Count I was based on alleged acts of sexual intercourse with Gwen occurring between November of 1988 and November 21, 1991, while Count II was based on alleged acts of sexual intercourse with Gwen occurring between November 21, 1991, and January 1, 1997. The separate charges reflect the statutory definition of the term "without consent" for purposes of establishing the offense of sexual intercourse without consent. Count I encompasses a time period when Gwen was under the age of 16 and, pursuant to § 45-5-501(1)(b)(iii), MCA, was legally incapable of consenting to sexual intercourse. Consequently, in order to prove the offense charged in Count I, the State was required to prove only that Harris and Gwen had sexual intercourse during the time period alleged; the lack of consent element of the offense was presumed based on evidence that Gwen was under the age of 16.

¶ 17 Harris contends that, because lack of consent was presumed under Count I, the not guilty verdict on that charge necessarily means that the jury found the State had not proved he and Gwen had sexual intercourse between November of 1988 and November 21, 1991. He further notes that the incest charge alleged in Count III alleged acts of sexual intercourse during a time period which encompassed the same period of November of 1988 through November 21, 1991. He argues therefrom that, because the jury found no acts of sexual intercourse occurred between November of 1988 and November 21, 1991, it is legally impossible for the jury to have found him guilty of incest under Count III.

¶ 18 A person commits incest if he or she

knowingly marries, cohabits with, has sexual intercourse with, or has sexual contact... with an ancestor, a descendant, a brother or sister of the whole or half blood, or any stepson or stepdaughter.

Section 45-5-507(1), MCA. Count III of the amended information alleged that Harris had committed incest by having sexual intercourse with Gwen, a descendent by adoption, on numerous occasions between November of 1988 and January 1, 1997. Although the incest charge included the same time period alleged in Count I, it also included an additional period of over five years which did not form the basis for Count I. Furthermore, notwithstanding that Count III alleged numerous acts of sexual intercourse, the State was required to prove only one act of sexual intercourse between Harris and his adopted daughter during the period alleged in Count III for the jury properly to have found that Harris committed incest. Thus, it is conceivable that, in finding Harris guilty of incest, the jury found that an act of sexual intercourse occurred between Harris and...