State v. Sage

Citation255 Mont. 227,841 P.2d 1142
Decision Date16 November 1992
Docket NumberNo. 92-214,92-214
PartiesSTATE of Montana, Plaintiff and Respondent, v. Jack SAGE, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Mark P. Yeshe, Donahoe & Yeshe, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Richard Llewellyn, County Atty., John P. Connor, Sp. Deputy County Atty., Boulder, for plaintiff and respondent.

McDONOUGH, Justice.

This is an appeal from the Fifth Judicial District Court, Jefferson County, order denying defendant's motion to dismiss. We affirm. The sole issue on appeal is whether solicitation of incest is a crime in Montana.

In September, 1990, J.S. was alone in a swimming pool with defendant, her natural father. Defendant repeatedly asked J.S. to "fool around" with him. She refused because the request had a sexual connotation.

J.S. told a social worker that her father became increasingly aggressive toward her. In mid-March of 1991, he cut a peep hole in the bathroom wall so he could watch J.S. Later that month, when J.S. and her father were home alone, he again asked her if she would "fool around" with him. When she refused he asked, "Please, for me?" J.S. continued to refuse her father's propositions. After showering on April 2, 1991, J.S. discovered a video camera hidden in the bathroom. The camera was running and aimed to video tape a person in the bathroom.

Defendant admitted to law enforcement officers that he asked his daughter to fool around with him in a sexual manner. Defendant further admitted that he had placed the video camera and drilled the peep hole. He conceded he knew these actions were wrong.

The State charged the defendant, Jack Sage, with two counts of solicitation of incest in violation of Sec. 45-4-101, MCA, and Sec. 45-5-507, MCA. Defendant filed a motion to dismiss, arguing that solicitation of incest is not a crime in Montana. The District Court denied the motion. On December 9, 1991, defendant entered a conditional guilty plea to one count of solicitation of incest. The District Court found that defendant was in fact guilty of soliciting incest and gave him a deferred imposition of sentence. Defendant appeals contending the District Court erred in denying his motion to dismiss.

Our standard of review of a district court's conclusions of law is plenary. We determine whether the district court's conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

The policy behind the crime of solicitation is to protect people from "exposure to inducements to commit or join in the commission of crime." State v. Bush (1981), 195 Mont. 475, 480, 636 P.2d 849, 852. Among other things, the solicitation statute facilitates prosecution of those who formulate and cultivate criminal schemes before a completed scheme can cause injury to others. William F. Crowley, Montana Criminal Law, 607-609 (1990).

Defendant contends solicitation of incest is not a crime in Montana. He reasons he did not intend that J.S. commit a crime, rather she was his intended incest victim. Relying on Illinois law, defendant further reasons that the crime of solicitation applies only where a person requests another to commit a crime and not when the person solicits a victim. However, under Montana's statute the status of the person solicited is neither an element of nor a defense to the crime of solicitation. See Sec. 45-4-101, MCA.

Montana adopted its solicitation statute from the Illinois Criminal Code of 1961. When Montana adopted it, the Illinois statute read, "A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense." Ill.Ann.Stat. ch. 38 para. 8-1 (Smith-Hurd 1989) (emphasis added). When the Montana Legislature adopted the statute in 1973 it changed the language. See Sec. 94-4-101, RCM (1977). The legislature has not changed the statute since its enactment. The Montana...

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14 cases
  • State v. Fuller
    • United States
    • Montana Supreme Court
    • April 16, 1996
    ...court's conclusions of law is plenary. We determine whether the district court's conclusions are correct." State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143 (citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d Fuller alleges that his privilege against compelle......
  • State v. Okland
    • United States
    • Montana Supreme Court
    • May 29, 1997
    ...conclusions are correct as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. When we review a district court's findings of fact, the standard of review is whether those findings are clearly er......
  • State v. Rushton
    • United States
    • Montana Supreme Court
    • March 22, 1994
    ...therefore, is plenary and we must determine whether the court's conclusions were correct as a matter of law. State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. ISSUE Did the District Court err when it denied defendant's motion to suppress evidence of statements made prior to the......
  • State v. Morgan, 97-711
    • United States
    • Montana Supreme Court
    • November 12, 1998
    ...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 A. Constitutionality of § 45-5-507......
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