State v. Morgan

• Decision Date: 12 November 1998
• Docket Number: No. 97-711,97-711
• Citation: 968 P.2d 1120,291 Mont. 347
• Parties: , 1998 MT 268 STATE of Montana, Plaintiff and Respondent, v. John Richard MORGAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1120

968 P.2d 1120

291 Mont. 347, 1998 MT 268

STATE of Montana, Plaintiff and Respondent, v. John Richard MORGAN, Defendant and Appellant.

No. 97-711.

Supreme Court of Montana.

Nov. 12, 1998.

Submitted on Briefs June 11, 1998.

Decided Nov. 12, 1998.

Harold H. Harrison and Royal Aubrey Davis, Attorneys at Law, Helena, Montana, for Appellant.

Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana; Mike McGrath, Lewis and Clark County Attorney; Vicki Frazier, Deputy County Attorney; Helena, Montana, for Respondent.

REGNIER, Justice.

¶1 John Richard Morgan was charged by information in the First Judicial District Court, Lewis and Clark County, with one count of incest, in violation of § 45-5-507, MCA. Morgan filed a motion to dismiss on April 10, 1997, and the District Court denied his motion on June 2, 1997. On June 11, 1997, a jury found Morgan guilty. Morgan filed a motion for a new trial on July 11, 1997. Following a hearing, the District Court denied the motion on September 19, 1997. On October 30, 1997, the District Court sentenced Morgan to a term of twelve years at the Montana State Prison, with four years suspended. Morgan filed a notice of appeal on November 12, 1997. We affirm the judgment of the District Court.

¶2 The issues presented on appeal are as follows:

¶3 1. Did the District Court err when it denied Morgan's motion to dismiss based upon its conclusion that § 45-5-507, MCA, does not violate Article V, Section 11(3), of the Montana Constitution?

¶4 2. Did the District Court abuse its discretion when it allowed the State to present expert testimony regarding child sexual abuse?

¶5 3. Did the District Court abuse its discretion when it denied Morgan's motion for a new trial which he based upon his contention that the District Court erred when it admitted certain testimony by the State's expert witness?

¶6 4. Did the District Court abuse its discretion when it denied Morgan's motion for a new trial which Morgan based upon his contention that the State had prevented Karen Morgan from testifying?

FACTUAL BACKGROUND

¶7 Morgan and his wife, Mary, reside in a small two-bedroom mobile home in Helena. Mary's fifteen-year-old daughter from a former marriage, E.G., resides with her father in a small town near Kalispell. In December 1996, E.G. went to Helena to visit her mother and her stepfather, Morgan. Morgan's seventeen-year-old daughter, Karen Morgan, who lives with Morgan's former wife in Florida, was also visiting the Morgans in Helena that December.

¶8 After staying up all night on December 25, 1996, Karen and E.G. went with Mary and Morgan to take Mary to work. When the three of them returned to the mobile home, Karen and E.G. decided to get some sleep. Karen went to sleep in the middle bedroom, and E.G. changed into her nightgown and was going to sleep on the couch in the living room. However, as E.G. testified at trial, Morgan told E.G. that she could lie down with him in his bed in the back bedroom. E.G. went to the back bedroom and fell asleep.

¶9 E.G. woke up and felt Morgan touching her. E.G. testified that Morgan was touching her underneath her nightgown, placing his hands beneath her bra and beneath her panties. When Morgan unsnapped E.G.'s bra, E.G. got up from the bed and went out to the living room. She told Morgan that she was going to watch a video. Morgan followed her to the living room and told E.G. that she could watch the video in the back bedroom. At first E.G. declined, but Morgan insisted, so E.G. went back to Morgan's bedroom to watch the video.

¶10 While E.G. and Morgan were in the back bedroom the second time, Morgan began touching E.G. again in her breast and pubic areas. Morgan told E.G. that she was beautiful and sexy. He asked E.G. some sexually explicit questions and propositioned her sexually. Although E.G. had studied reproduction in health class and believed she knew what Morgan was asking, she testified that she herself had never used the sexual terms that Morgan used.

¶11 E.G. told Morgan "no" and went back out to the living room. E.G. started cleaning, and Morgan came back out to the living room and got something to eat. Morgan and E.G. then played some board games and watched television. Karen was still sleeping, and neither E.G. nor Morgan mentioned what had happened in the back bedroom.

¶12 Shortly before 2:00 p.m. Morgan left to pick Mary up from work. While he was gone, E.G. received a phone call from her father in Kalispell. During the call, E.G. also talked with Donna Sausedo, who lives with E.G.'s father and has been a mother figure for E.G. for several years. E.G. began crying and told Donna what had happened that morning. Donna and E.G.'s father notified law enforcement authorities and left at once for Helena.

¶13 After speaking with Donna, E.G. told Karen what had happened and why she was crying. When Morgan returned with Mary, Karen told E.G. that she should tell Mary as well. After E.G. told Mary, Morgan learned that officers would be coming out to his residence and, therefore, decided to leave E.G. with Karen and go to the police station with Mary to talk with a deputy sheriff about the incident.

¶14 Morgan told the deputy that he fell asleep on the bed and awoke to find that he had his arms around E.G. and one hand on her breast. He stated that he thought that it was his wife, Mary, in bed with him and that when he realized it was E.G., he removed his hand and told E.G. that she would have to get out of bed. When told that E.G. had a different account of the incident, Morgan modified his account by stating that he awoke with his hand going up E.G.'s hip and across her lower abdomen, and up her breast. According to Morgan, he then realized that the body next to him was not his wife's.

ISSUE 1

¶15 Did the District Court err when it denied Morgan's motion to dismiss based upon its conclusion that § 45-5-507, MCA, does not violate Article V, Section 11(3), of the Montana Constitution?

¶16 Morgan's first issue on appeal arises from the District Court's denial of his pretrial motion to dismiss the charge of incest. Morgan maintains that Montana's incest statute, § 45-5-507, MCA, was amended in violation of Article V, Section 11(3), of the Montana Constitution, which requires each legislative bill to contain only one subject clearly expressed in its title. Morgan claims that because of this, the statute is void and the offense is not a crime. Morgan also argues that since marriage between a stepfather and a stepdaughter is not explicitly prohibited by statute, his conduct with E.G. could not be considered incest.

¶17 We have held that the grant or denial of a pretrial motion to dismiss in a criminal case presents a question of law for review on appeal. The standard of review of a district court's conclusions of law is plenary, and this Court reviews the conclusions to determine if they are correct. See State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. Upon plenary review, we affirm the District Court's denial of Morgan's motion to dismiss.

A. Constitutionality of § 45-5-507, MCA

¶18 Article V, Section 11(3), of the Montana Constitution provides in pertinent part that:

Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.

Subsection (6) of this section further provides, however, that "[a] law may be challenged on the ground of noncompliance with this section only within two years after its effective date."

¶19 The 1983 Montana Legislature amended the incest statute, which was then codified as § 45-5-613, MCA, to include within its protective scope any stepchild who has not been adopted by the offender. See 1983 Mont. Laws, ch. 438. The amendment became effective on October 1, 1983, and is contained within the incest statute now codified as § 45-5-507, MCA. The title to the bill reads as follows:

AN ACT TO AMEND THE DEFINITION OF THE CRIME OF INCEST TO

INCLUDE ANY SEXUAL CONTACT; TO EXTEND THE DEFINITION TO

INCLUDE ANY STEPSON OR STEPDAUGHTER WHO HAS NOT BEEN ADOPTED

BY THE PERSON COMMITTING THE OFFENSE; PROVIDING FOR THE

DEFENSE OF CONSENT; AMENDING SECTION 45-5-613, MCA.

¶20 In order to determine whether the 1983 legislation contains multiple subjects not clearly expressed in the title, we must look to the policy behind Article V, Section 11(3), of the Montana Constitution. In Montana Automobile Ass'n v. Greely (1981), 193 Mont. 378, 632 P.2d 300, we stated that:

The purpose of requiring singleness of subject is to prevent the practice of embracing in the same bill incongruous matters which have no relation to each other or to the subject specified in the title, so that measures may not be adopted without attracting attention to them. Rosebud County v. Flinn(1940), 109 Mont. 537, 543-44, 98 P.2d 330, 334; Jobb v. Meagher County(1898), 20 Mont. 424, 437, 51 P. 1034, 1038.

Montana Auto. Ass'n, 193 Mont. at 398, 632 P.2d at 311. We further stated that "[t]he test under this provision of the Montana Constitution is simply whether the title is of such character as to mislead the public as to the subjects embraced." Montana Auto. Ass'n, 193 Mont. at 398, 632 P.2d at 311(citing City of Helena v. Omholt (1970), 155 Mont. 212, 220-21, 468 P.2d 764, 768).

¶21 The Act clearly addresses the singular subject of incest. It does not embrace other irrelevant or incongruous matters. We agree with the District Court that the public could not be misled as to the subject discussed, and conclude that the District Court's interpretation of the law was correct.

B. Applicability of § 45-5-507, MCA

¶22 The second part of Morgan's pretrial motion to dismiss, which he raises again on appeal,...