State v. Hicks, 04-742.

• Citation: 133 P.3d 206,2006 MT 71,331 Mont. 471
• Decision Date: 11 April 2006
• Docket Number: No. 04-742.,04-742.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Shane A. HICKS, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

133 P.3d 206

2006 MT 71

331 Mont. 471

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

No. 04-742.

Supreme Court of Montana.

Submitted on Briefs March 7, 2006.

Decided April 11, 2006.

COPYRIGHT MATERIAL OMITTED

For Appellant: Randy H. Randolph, Attorney at Law, Havre, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Yvonne Laird, Blaine County Attorney; Anastasia M.B. Maloney, Deputy County Attorney, Chinook, Montana.

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

¶ 1 Shane A. Hicks (Hicks) appeals from the judgment entered by the Seventeenth Judicial District Court, Blaine County, on his conviction and sentence for the offense of sexual intercourse without consent. We affirm in part, reverse in part and remand for resentencing.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did sufficient evidence support the jury's guilty verdict on Count II, sexual intercourse without consent?

¶ 4 2. Did the District Court abuse its discretion in denying Hicks' motion to exclude certain of the prosecution's proposed exhibits?

¶ 5 3. Did the District Court err in denying Hicks' motions to dismiss?

¶ 6 4. Did the prosecution violate Hicks' constitutional right to due process by failing to provide him with discoverable information?

¶ 7 5. Did the District Court abuse its discretion in denying Hicks' motion for a new trial?

¶ 8 6. Did the District Court err in sentencing Hicks?

BACKGROUND

¶ 9 In February of 2004, the State of Montana (State) charged Hicks by information with two counts of felony sexual intercourse without consent in violation of § 45-5-503(1), MCA. The information alleged in Count I that Hicks had sexual intercourse with S.H., without her consent, at approximately 8:00 a.m. on February 14, 2004. The information alleged in Count II that Hicks had sexual intercourse with S.H., without her consent, at approximately 12:00 p.m. on February 14, 2004. Hicks pled not guilty to both counts.

¶ 10 A jury trial was held on June 16, 17 and 18, 2004. During trial, Hicks twice moved to dismiss the charges against him on the basis that S.H. had testified falsely during trial and had asked her sister to lie to law enforcement authorities. The District Court denied both motions to dismiss. At the close of the State's case-in-chief, Hicks moved for a directed verdict on the basis that the State had failed to meet its burden of proof as to either charge. The District Court denied this motion as well. The jury eventually returned a verdict finding Hicks not guilty on Count I and guilty on Count II. The District Court scheduled a sentencing hearing and ordered the preparation of a presentence investigation report (PSI). The court also ordered Hicks to undergo a psychosexual evaluation for purposes of sentencing.

¶ 11 Following trial, Hicks moved the District Court for a new trial, asserting newly discovered exculpatory evidence and the jury's failure to apply the appropriate burden of proof during its deliberations. On September 27, 2004, the District Court held a combined hearing on the motion for a new trial and sentencing. The court first heard testimony and argument regarding Hicks' motion for a new trial and denied it. The court then heard testimony and argument regarding sentencing. The District Court subsequently sentenced Hicks to the Montana Department of Corrections (DOC) for a term of 14 years, with recommendations that Hicks complete various programs and evaluations while incarcerated. The court also imposed numerous conditions in the event Hicks was released on parole. The District Court entered judgment on the conviction and sentence. Hicks appeals.

DISCUSSION

¶ 12 1. Did sufficient evidence support the jury's guilty verdict on Count II, sexual intercourse without consent?

¶ 13 We review the sufficiency of the evidence to support a guilty verdict in a criminal case to determine whether, upon reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. State v. Kuipers, 2005 MT 156, ¶ 6, 327 Mont. 431, ¶ 6, 114 P.3d 1033, ¶ 6. Hicks argues that insufficient evidence supports the jury's guilty verdict on Count II because the State failed to present evidence establishing that this offense occurred at approximately 12:00 p.m. on the date in question as alleged in the information.

¶ 14 As stated above, the State's information alleged in Count I that Hicks had sexual intercourse with S.H., without her consent, at approximately 8:00 a.m. on February 14, 2004, and in Count II that Hicks had sexual intercourse with S.H., without her consent, at approximately 12:00 p.m. on that same day. Hicks contends with regard to Count II that S.H. did not know what time the second incident occurred and the State provided no other evidence to suggest any particular time at which that incident occurred. However, S.H. testified several times on both direct and cross-examination at trial that the second incident of sexual intercourse occurred at approximately 12:00 p.m. Additionally, Hicks testified that he left the house after the first incident of consensual sexual intercourse, went to work for a couple of hours, returned to the house at around noon, ate lunch and the two had consensual sexual intercourse again shortly thereafter. We conclude sufficient evidence was presented on which the jury could find beyond a reasonable doubt that the incident of sexual intercourse without consent charged in Count II occurred at approximately 12:00 p.m. on the day in question.

¶ 15 Hicks also observes that "the two alleged offenses are virtually identical except as to the time the offenses were alleged to occur and the location in the home," and contends, on that basis, that it was inconsistent for the jury to find reasonable doubt as to Count I of the information but convict him on Count II. We disagree. Generally, consistency in jury verdicts is not required. State v. Bailey, 2003 MT 150, ¶ 12, 316 Mont. 211, ¶ 12, 70 P.3d 1231, ¶ 12. Rather, "the question is not whether a criminal jury's verdict is inconsistent, but whether the verdict is supported by sufficient evidence." Bailey, ¶ 13. Where an information alleges separate acts as separate offenses, a conviction or acquittal on one charge does not affect the other charges. State v. Azure, 2002 MT 22, ¶ 48, 308 Mont. 201, ¶ 48, 41 P.3d 899, ¶ 48.

¶ 16 Here, the information alleged two separate acts of sexual intercourse without consent occurring at two separate times on the same day. The District Court instructed the jury that it must decide each count separately and find the defendant guilty or not guilty as to each count. The jury also was instructed that, as to each charged offense, it must find that the State proved beyond a reasonable doubt that Hicks had sexual intercourse with S.H., that the intercourse was without S.H.'s consent and that Hicks acted knowingly. Hicks does not dispute that he and S.H. had sexual intercourse on two separate occasions on that day, but he contended at trial that S.H. consented to both acts. S.H. testified that she did not consent to either act. The jury weighed the conflicting testimony and found that the State had not proved beyond a reasonable doubt the first count of sexual intercourse without consent, but had proved beyond a reasonable doubt the second count of sexual intercourse without consent.

¶ 17 We hold sufficient evidence supported the jury's guilty verdict on Count II, sexual intercourse without consent.

¶ 18 2. Did the District Court abuse its discretion in denying Hicks' motion to exclude certain of the State's proposed exhibits?

¶ 19 A district court has broad discretion in determining the relevance and admissibility of evidence. State v. Flowers, 2004 MT 37, ¶ 19, 320 Mont. 49, ¶ 19, 86 P.3d 3, ¶ 19. Consequently, we will not overturn a district court's evidentiary ruling absent a showing of abuse of discretion. Flowers, ¶ 19.

¶ 20 On the morning of the first day of trial, Hicks moved to exclude all of the State's proposed exhibits on the basis that the State had failed to provide him with an exhibit list 20 days before trial as the District Court ordered at the omnibus hearing. The State conceded it had not provided Hicks with the required exhibit list, but contended Hicks was aware of the exhibits well prior to trial, had been provided copies of the exhibits and knew the State intended to introduce the exhibits at trial. Consequently, according to the State, Hicks would not be unfairly surprised or prejudiced by admitting the exhibits into evidence. The State's proposed exhibits consisted of two audio tapes of Hicks' statement to law enforcement on the day he was arrested and eight photographs. The District Court excluded two of the photographs because the copies provided to Hicks failed to accurately reflect the contents of the originals, but denied Hicks' motion to exclude the two audio tapes and the remaining six photographs.

¶ 21 Hicks contends the District Court abused its discretion in denying his motion to exclude the State's exhibits. He asserts generally that admission of the exhibits at trial constituted unfair surprise and "was so highly prejudicial as to warrant this matter being remanded to district court for a new trial, or dismissed in its entirety." Pursuant to § 46-20-701(2), MCA, we must disregard any asserted error, defect or irregularity in a criminal proceeding which does not affect the defendant's substantive rights. Where a defendant does not establish that the admission of challenged evidence or testimony was prejudicial to the defense, the defendant cannot meet the statutory standard requiring that the alleged error affect the defendant's substantive rights. See State v. Boettiger, 2004 MT 313, ¶¶ 16-17, 324 Mont. 20, ¶¶ 16-17, 101 P.3d...