State v. Sheppard

• Decision Date: 01 May 1992
• Docket Number: No. 90-229,90-229
• Citation: 253 Mont. 118,832 P.2d 370
• Parties: STATE of Montana, Plaintiff and Respondent, v. Lawrence R. SHEPPARD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 370

832 P.2d 370

253 Mont. 118

STATE of Montana, Plaintiff and Respondent, v. Lawrence R. SHEPPARD, Defendant and Appellant.

No. 90-229.

Supreme Court of Montana.

Submitted on Briefs April 4, 1991.

Decided May 1, 1992.

William Boggs, Missoula, for defendant and appellant.

Marc Racicot, Atty. Gen., Helena, Joseph Thaggard, Asst. Atty. Gen., Robert L. Deschamps, III, Missoula, Betty Wing, Deputy Co. Atty., for plaintiff and respondent.

GRAY, Justice.

Lawrence R. Sheppard appeals his conviction of sexual intercourse without consent, a felony, by a jury sitting in the District Court of the Fourth Judicial District, Missoula County. We affirm.

Sheppard presents the following issues on appeal:

1. Should Montana adopt the California rule that where the evidence clearly supports it, a lesser-included offense instruction must be given by the District Court sua sponte, even if not requested by the defense?

2. Did the District Court's failure to instruct the jury on the lesser-included offense of misdemeanor sexual assault deprive Sheppard of due process of law by denying him a fair trial?

In July 1989 Lawrence R. Sheppard and his wife moved from Florida to Missoula, Montana. When he arrived in Missoula, sheppard went to Broughton's, a Missoula bar. There he met several people, including 16-year-old C.K. and Terri Beckstrom. C.K. was living with the Beckstrom family after having moved out of her parents' home. Testimony conflicted regarding lewd behavior of C.K. and others at the bar that evening.

After that initial meeting, Sheppard visited the Beckstrom household a few times and saw C.K. as one of a group of people there. Sheppard treated the group, including C.K., to lunch and on another occasion to ice cream.

On the evening before the alleged offense, Sheppard went out drinking and stayed out all night. He testified that he came to the Beckstrom household on the morning of August 25, allowed Beckstrom and others to take his van for a shopping trip, and went to sleep in an upstairs bedroom.

C.K. testified that when she went into the bedroom to find a cigarette, Sheppard offered her $5 for a back rub. She gave him a back rub, and Sheppard paid her $4. C.K. said that Sheppard then offered her $50 to "make him feel good," and that she refused. C.K. stated that she thought this offer meant another back rub.

When Beckstrom and others returned to the house, Sheppard went out to his van. After a few minutes, one of Beckstrom's children told C.K. that Sheppard wanted to talk to her. C.K. went out to the van and got in. Sheppard offered to take her for a ride for an hour, just to get away from the house and to buy some pants for himself. Sheppard said that he again offered C.K. $50 to make him feel good. C.K. testified that Sheppard made no mention of the $50.

Sheppard drove the van to a ski area parking lot. Sheppard got out and climbed into the carpeted area in the back of the van. C.K. stayed in the front passenger seat for a few minutes and then, at Sheppard's request, brought him a beer. C.K. then joined Sheppard in the back of the van. She was seated with her legs folded under her and with her back up against the back of the van.

Sheppard began making sexual advances, touching C.K.'s leg, stomach, and breasts. Sheppard ran his hand between her legs and into her crotch area. C.K. stated that she told him several times to stop. Sheppard testified that C.K. did not tell him to stop until he touched her vaginal area and when he was told to stop, he did. C.K. testified that Sheppard lifted her skirt up and put his hand inside her panties. Without removing her panties, he inserted his finger into her vagina and then penetrated her momentarily with his penis. Sheppard denied penetration in any manner.

Sheppard asked C.K. "if it was okay if he took care of himself," and masturbated on C.K.'s leg. Sheppard wiped off her leg with a Kleenex which he threw outside the van. The Kleenex was later found by police.

Both testified that Sheppard then drove to the KOA campground and let C.K. out. Sheppard stated that he told C.K. that he would be back with the $50. C.K. denied that Sheppard told her that. Sheppard did not return to pick her up, and C.K. tried to walk to a friend's house, but could not find it. After approximately an hour, she returned to the KOA store and called Beckstrom who sent a friend to give her a ride home. C.K. testified that she was very angry when the friend arrived, but that she did not talk to him about the rape because she did not know him very well.

When she returned to Beckstrom's, C.K. told Beckstrom about the alleged rape and the incident was reported to the authorities. When Sheppard was arrested by sheriff's officers that night, he denied any sexual contact with C.K. After Sheppard discovered that the Kleenex had been recovered, he gave a second statement saying that sexual contact occurred with C.K.'s consent, but that no penetration occurred.

Physical evidence was consistent with events as described by either C.K. or Sheppard. Semen was found on the recovered Kleenex. From vaginal smears of C.K., two sperm and three sperm heads were later found in laboratory examinations. Expert testimony indicated that the low number of sperm found could be associated with momentary penetration or from intercourse a few days prior to the laboratory tests.

Sheppard was charged with sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (1989), and was convicted by a jury. The District Court sentenced Sheppard to the maximum twenty years in prison and enhanced the sentence another ten years because of Sheppard's prior criminal record. Fifteen years of the thirty-year sentence were suspended.

I.

Should Montana adopt the California rule that where the evidence clearly supports it, a lesser-included offense instruction must be given by the court sua sponte, even if not requested by the defense?

One matter in addition to the issues raised by the appellant requires discussion before we begin our analysis of those issues. The State asserts that this Court should decline to review the District Court's failure to give the lesser-included offense instruction sua sponte because of Sheppard's failure to request the instruction or object at trial. Sheppard asserts that § 46-20-701(2), MCA (1989), which places limits on appellate review where there has been no objection in the trial court, is inapplicable in this case because any sua sponte action by a trial court by definition takes place without request or objection from trial counsel. We decline to consider the applicability of § 46-20-701(2), MCA (1989), to a trial court's duty to act sua sponte.

To begin our analysis of the issues to be decided, Sheppard urges this Court to adopt the minority rule that a trial court has a duty to instruct the jury on a lesser-included offense, even absent a request for such an instruction. See, e.g., People v. Wickersham (1982), 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311; State v. Coward (1981), 54 N.C.App. 488, 283 S.E.2d 536. While conceding that this is a case of first impression in Montana, he argues that Montana statutory and case law both mandate this result.

Sheppard cites State v. Lundblade (1981), 191 Mont. 526, 625 P.2d 545 and § 46-16-401, MCA (1989), for the proposition that in Montana the trial judge has a duty to charge the jury on all essential questions of law, whether requested or not. Sheppard asks this Court to expand this duty by adopting the California rule compelling trial courts to instruct sua sponte if the evidence supports a conviction for a lesser-included offense. Wickersham, 185 Cal.Rptr. at 445, 650 P.2d at 320. The California Supreme Court based its policy requiring sua sponte instruction on a lesser-included offense on the following rationale: (1) a defendant has no right to an acquittal when the evidence is sufficient to convict him of a lesser-included offense; (2) the policy ensures that the verdict is neither harsher nor more lenient than the evidence merits; (3) the policy protects a defendant from poor representation by a lawyer who is unaware of possible lesser-included offenses; and (4) the policy fully guards the right of the accused to complete instructions. Wickersham, 185 Cal.Rptr. at 444-46, 650 P.2d at 319-21.

We concede that a district court's failure to instruct the jury on essential questions of law can amount to error. See, e.g., State v. Williams (1979), 184 Mont. 111, 601 P.2d 1194. However, the general rule in Montana is that the court may instruct the jury sua sponte if evidence supports such an instruction. State v. DeMers (1988), 234 Mont. 273, 280-81, 762 P.2d 860, 864-65.

Further, the statute on which Sheppard relies denotes the trial court's permissive power, rather than a mandatory duty, to give the jury a lesser-included offense instruction sua sponte. Section 46-16-401(1), MCA (1989), provides that the district court may instruct the jury as to its duties by means of general instructions on that subject. In addition, § 46-16- 401(4)(b), MCA (1989), refers to the court's role of settling the instructions "offered by counsel or proposed to be given to the jury by the court." (Emphasis added.) Conversely, § 46-16-401(4)(a), MCA (1989), clearly requires counsel to offer special instructions to the court if counsel desires such instructions to be given to the jury. While we agree that the trial court should instruct on all essential questions of law and may offer its own instructions, § 46-16-401, MCA (1989), does not expressly impose on the district court a duty to instruct the jury on questions of law not requested by counsel.

A lesser-included offense does not fall within the category of an "essential" question of law because defense counsel may want to omit such an instruction as a matter of strategy. Montana recognizes that, upon request, a defendant is entitled to an instruction about a lesser-included offense...