State v. Montoya

• Decision Date: 11 January 1996
• Docket Number: No. 920441-CA,920441-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Eugene MONTOYA, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 441

910 P.2d 441

STATE of Utah, Plaintiff and Appellee, v. Eugene MONTOYA, Defendant and Appellant.

No. 920441-CA.

Court of Appeals of Utah.

Jan. 11, 1996.

Ronald S. Fujino, Elizabeth A. Bowman, and Robert K. Heineman, Salt Lake City, for Appellant.

Kenneth A. Bronston and Jan Graham, Salt Lake City, for Appellee.

Before GREENWOOD, JACKSON and WILKINS, JJ.

WILKINS, Judge:

Following his conditional plea of no contest to the charge of incest, Eugene Montoya appeals "the narrow legal question of whether the State correctly charged [him] and recited the elements of Incest in the Amended Information." We affirm.

BACKGROUND

In April 1991, the State charged Montoya with one count of aggravated sexual assault In September 1991, Montoya filed a motion to compel the State to elect between the two charges, arguing that "these charges are mutually exclusive and the same facts cannot support both allegations because they cannot both be true." At a hearing on the motion, Montoya also asked the trial court to amend Count II of the information, the incest charge, "to comport with the terms of the statute." The trial court then granted the State leave to amend the information to correctly charge incest and to plead it in the alternative to aggravated sexual assault.

a first degree felony, in violation of section 76-5-405 of the Utah Code, and one count of incest, a third degree felony, in violation of section 76-7-102. According to the information, Montoya allegedly took his adult daughter to a motel where he "beat her, and forced her to have sex with him on several occasions between February 22, 1991 and February 25, 1991."

Although the State did file an amended information listing the two offenses in the alternative, Montoya moved to dismiss for lack of jurisdiction, claiming that the incest charge still failed to comport with the statutory language by omitting the phrase "under circumstances not amounting to rape, rape of a child or aggravated sexual assault," contained in section 76-7-102. According to Montoya, the incest charge did not list all the requisite elements and therefore did not constitute a crime and did not provide him with adequate notice. Montoya further argued that the State could not charge both aggravated sexual assault and incest, alleging that the conflicting nature of the two crimes impermissibly required him to defend against "rape" and "not rape." Montoya also requested a bill of particulars and again moved the trial court to compel the State to elect one of the two charges.

In March 1992, Montoya entered a conditional plea of no contest to the incest charge, preserving his right to appeal his claims that the State incorrectly charged him and failed to recite all the elements of incest in the amended information. The trial court accepted the plea, and Montoya appealed.

Without addressing the merits of Montoya's "improper charge" arguments, this court vacated his conditional plea, concluding that "the trial court should not have accepted the conditional no contest plea since an appeal of the purportedly preserved issue [would] not necessarily end the prosecution of the case." State v. Montoya, 858 P.2d 1027, 1030 (Utah App.1993) (construing State v. Sery, 758 P.2d 935 (Utah App.1988)).

However, the supreme court granted certiorari and reversed the prior decision of this court. State v. Montoya, 887 P.2d 857, 857 (Utah 1994). The court then remanded the matter for our consideration of Montoya's "improper charge" arguments. Id. at 860.

ANALYSIS

We first consider Montoya's claim that incest and aggravated sexual assault constitute repugnant theories, requiring proof of contradictory facts. This argument presents a legal question for our determination. See State v. Pena, 869 P.2d 932, 935 (Utah 1994) (indicating that "legal" determinations are "those which are not of fact but are essentially of rules or principles uniformly applied"). Montoya's claim that the State failed to properly charge incest in the amended information, thereby failing to provide him with adequate notice, also presents a legal question. See State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991).

I. Alleged Repugnancy of the Two Claims

Generally, the State can charge offenses in the alternative. See Utah R.Crim.P. 4(i) ("Use of the disjunctive rather than the conjunctive shall not invalidate the indictment or information."). However, incest and aggravated sexual assault cannot be charged in the same information, even in the alternative, if they constitute repugnant theories. See State v. Butler, 560 P.2d 1136, 1138 (Utah 1977) ("[T]he information itself may be in the disjunctive. And the State need not make an election ... if the theories specified in the information are not repugnant to each other." (footnotes omitted)).

Utah case law has declared that theories "are not repugnant unless proof of one disproves the other." State v. Tillman, 750 P.2d 546, 567 n. 73 (Utah 1987) (citing State Other jurisdictions have similarly defined repugnancy as "an inconsistency or disagreement between statements of material facts" in a pleading, Cohen v. Wilhelm, 63 F.2d 543, 545 (3d Cir.1933), "a contradiction between material allegations" in a count of an indictment, Sunderland v. United States, 19 F.2d 202, 208 (8th Cir.1927), "two inconsistent allegations in one pleading," Fowler v. State, 20 Okla.Crim. 410, 203 P. 900, 902 (1922), and "allegations inconsistent with each other in the same count, all of which cannot be true," Helmus v. State, 397 S.W.2d 437, 438 (Tex.Crim.App.1965).

v. Richardson, 24 Wash.App. 302, 600 P.2d 696, 698 (1979)), cert. denied, --- U.S. ----, 114 S.Ct. 706, 126 L.Ed.2d 671 (1994). The Tillman case went on to state that the alternative theories charged in that case were not repugnant because "proof of facts supporting a finding of one [theory] would not necessarily disprove facts concerning any of the other [theories] charged." Id. (emphasis added).

When the prosecution makes contradictory allegations of fact in an indictment or information, it denies a criminal defendant his right to adequate notice, failing to inform him of the theory the prosecution hopes to establish at trial and thereby prejudicing his ability to prepare a full and complete defense. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation...."); see also Utah Const. art. I, § 12 ("In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him...."). Furthermore, allowing the prosecution to present such conflicting theories of fact to the jury would place unacceptable burdens on the defense and would offend our notions of fairness and due process.

On the other hand, if the facts required to prove the crimes of incest and aggravated sexual assault are not inconsistent with each other, in that proof of one required fact or element does not necessarily disprove another required fact or element, then the crimes are not repugnant and can be charged in the alternative. The fact that a defendant cannot be convicted of both incest and aggravated sexual assault does not alone make the crimes repugnant.

Section 76-5-405(1) provides that "[a] person commits aggravated sexual assault if in the course of rape ... the actor ... (a) causes bodily injury to the victim; [or] (c) compels ... the victim to submit to rape ... by [improper] threat." ¹ Utah Code Ann. § 76-5-405(1) (1990). Accordingly, to prove aggravated sexual assault in this case, the State would have to allege and prove that Montoya had sexual intercourse with his daughter, without her consent, ² and that he caused her physical injury or used unlawful threats during the commission of the offense.

On the other hand, section 76-7-102 establishes that "[a] person is guilty of incest when, under circumstances not amounting to rape ... or aggravated sexual assault, he has sexual intercourse with a person whom he knows to be an ancestor, descendant," or some other close relation. Utah Code Ann. § 76-7-102 (1990).

Montoya argues that the "repugnancy" rule applies to this case because he is otherwise forced to defend against "rape" and "not rape." He claims that the "under circumstances not amounting to" language in the incest statute adds an essential element to that crime. What Montoya is really arguing is that he is forced to defend against allegations of "consensual intercourse" and "nonconsensual intercourse," both of which cannot be true.

However, "consent" has never been a required element of incest. See State v. Winslow, 30 Utah 403, 407-08, 85 P. 433, 435 (1906). In Winslow, the defendant's daughter testified that she did not consent to the act and tried to get away. Id. at 404, 85 P. at 434. The defendant argued on appeal that under these circumstances he would be guilty [T]he great weight of authority is to the effect that when the incestuous fornication is shown to have been committed by the defendant with full knowledge of the relationship between himself and the other participant, though he used force in the accomplishment of his object, he may, nevertheless, be convicted of the crime of incest.... The defendant's guilt here is measured by his knowledge and intent, and not by the knowledge and intent of his daughter on whom he committed the offense.

                of rape but not incest.  Id. at 407, 85 P. at 435.   The supreme court concluded
                

Id. at 408, 85 P. at 435. Indeed, the only states requiring consent as an element of incest have statutorily defined incest as two related persons having intercourse "together" or "with each other." See id.; L.S. Tellier, Annotation, Consent as an Element of Incest, 36 A.L.R.2d 1299 (1954); see also 2 Charles E. Torcia, Wharton's Criminal Law § 244 (15th ed.1994) ("Under the prevailing view, the crime of incest does not require the consent of both parties.").

The only relevant change...