State v. Tipton

• Decision Date: 02 November 2021
• Docket Number: DA 20-0040
• Citation: 406 Mont. 186,497 P.3d 610
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kenneth Raymond TIPTON, Defendant and Appellant.
• Court: Montana Supreme Court

406 Mont. 186

497 P.3d 610

STATE of Montana, Plaintiff and Appellee,

v.Kenneth Raymond TIPTON, Defendant and Appellant.

DA 20-0040

Supreme Court of Montana.

Submitted on Briefs: September 29, 2021

Decided: November 2, 2021

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Burt Hurwitz, Meagher County Attorney, Cory Swanson, Special Deputy County Attorney, White Sulphur Springs, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant Kenneth Raymond Tipton appeals the November 19, 2019 Amended Sentence and Judgment following his convictions in the Fourteenth Judicial District Court, Meagher County, of Count I: Indecent Exposure to a Minor, in violation of § 45-5-504(1)(b) and (3), MCA (amended October 2015); Count II: Sexual Abuse of Children, in violation of § 45-5-625(1)(c) and (4), MCA (amended October 2017); and Count III: Sexual Abuse of Children, in violation of § 45-5-625(1)(c) and (2)(b), MCA (amended October 2017). We restate and address the following issues:

1. Whether Tipton's trial counsel provided ineffective assistance of counsel by failing to challenge the statutory basis for Count I when the statute upon which the charge was based did not go into effect until after one of the alleged incidents occurred.

2. Whether the ex post facto application of § 45-5-625(1)(c), MCA, for Count II and Count III should result in remand for a new trial or acquittal of the charges.

¶2 We reverse and remand for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The State alleged five incidents of sexual misconduct by Tipton against his minor grandnieces and grandnephew: V.B., A.B., and T.B. The incidents are alleged to have occurred between July 2015 and early 2017.

(1) The State alleged that during the Fourth of July holiday in 2015, while V.B. was camping with extended family, she stepped into her grandfather's camper to change out of her swimsuit, and Tipton entered the room in which she was changing and began to remove his shorts and underwear.

(2) The State alleged that in 2016, while visiting Tipton's home, Tipton exposed his penis to V.B. and showed her a pornographic image on his cell phone.

(3) The State alleged that in approximately 2016 or 2017, Tipton showed A.B. a pornographic image while she was visiting his home.

(4) The State alleged that sometime before July 2016, Tipton took T.B. on an errand. On the way home, Tipton pulled over, displayed pornography on his cell phone, and masturbated while T.B. remained in the passenger seat.

(5) The State alleged that during a family reunion in July 2016, Tipton took T.B. on an errand, and on the way home, pulled off into a dark parking lot, displayed pornography on his cell phone, and masturbated while T.B. remained in the passenger seat. During this incident, Tipton allegedly asked T.B. if he wanted to hold the phone and if he wanted to masturbate as well.

The State charged Tipton with three counts—Count I: Indecent Exposure to a Minor based on the July 2015 and 2016 incidents involving V.B.; Count II: Sexual Abuse of Children based on the incident involving A.B.; and Count III: Sexual Abuse of Children based on the incidents in 2016 involving T.B.

¶4 The State charged Tipton with violations of sections of the Montana Criminal Code without citing the effective date of the statutes. The State charged Count I as a violation of § 45-5-504(1)(b) and (3), MCA. Section 45-5-504, MCA, was enacted in 1973 and amended several times, including in 1999. The version in effect from 1999 to October 2015 did not differentiate between indecent exposure and indecent exposure to minors , nor did it prescribe a different sentence for indecent exposure to minors. Prior to October 2015, the maximum sentence for this offense was ten years.

¶5 In October 2015, § 45-5-504(3), MCA, went into effect. Subsection (3) states:

(a) A person commits the offense of indecent exposure to a minor if the person commits an offense under subsection (1) and the person knows the conduct will be observed by a person who is under 16 years of age and the offender is more than 4 years older than the victim.

(b) A person convicted of the offense of indecent exposure to a minor shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for a term of not less than 4 years, unless the judge makes a written finding that there is good cause to impose a term of less than 4 years and imposes a term of less than 4 years, or more than 100 years, or both.

Section 45-5-504(3), MCA (2015). The version of § 45-5-504, MCA, that went into effect in October 2015 carries a more severe punishment than the prior version of the statute.

¶6 The State charged Count II as a violation of § 45-5-625(1)(c) and (4), MCA, and Count III as a violation of § 45-5-625(1)(c) and (2)(b), MCA. The charging documents did not specify the effective date of the statutes charged. Section 45-5-625, MCA, was amended in October 2017. Prior to October 2017, subsection (1)(c) stated:

(1) A person commits the offense of sexual abuse of children if the person:

...

(c) knowingly, by any means of communication, including electronic communication, persuades, entices, counsels, or procures a child under 16 years of age or a person the offender believes to be a child under 16 years of age to engage in sexual conduct, actual or simulated.

Section 45-5-625(1)(c), MCA (2015). The October 2017 amendment added the italicized language below:

(1) A person commits the offense of sexual abuse of children if the person:

...

(c) knowingly, by any means of communication, including electronic communication or in person , persuades, entices, counsels, coerces, encourages, directs , or procures a child under 16 years of age or a person the offender believes to be a child under 16 years of age to engage in sexual conduct, actual or simulated, or view sexually explicit material or acts for the purpose of inducing or persuading a child to participate in any sexual activity that is illegal .

Section 45-5-625(1)(c), MCA (2017) (emphasis added). Prior to the 2017 amendment, it was not a stand-alone crime to show a minor sexually explicit material such as pornography.

All of the alleged conduct for Count II and Count III occurred prior to the effective date of § 45-5-625(1)(c), MCA (2017).

¶7 The State's original Information for Count I cited to alleged conduct occurring in 2016 and 2017. On March 25, 2019, the District Court held a final pretrial hearing and addressed the State's Amended Information. Tipton was present with his counsel. The District Court asked the State if the Amended Information included a "substantive change." The State replied:

Your Honor, the only change is inclusion of the year 2015 in Count I .... There's no allegation of change of acts or individuals involved. It was simply inclusion of the year 2015, as well as the previous alleged years of 2016 and 2017.

¶8 The District Court then clarified with Tipton:

THE COURT: So, you heard did you that essentially the nature of the amendment is the State has included a different date of the alleged offense, along with a previous one that was included, and that in actuality that's the sum and substance of the amendment?

THE DEFENDANT: Yes, Your Honor. I talked to my lawyer about it and she explained it to me.

The District Court then asked if Tipton understood that by including the year 2015 that the "possible penalties remain the same." Tipton assented and his counsel did not object.

¶9 The matter proceeded to a six-day jury trial. Both parties called several witnesses to testify regarding the various incidents. Seven witnesses testified regarding their memories of events surrounding the July 2015 incident. Several witnesses were asked to describe in detail the layout of the campground, who they recalled being present, and the activities engaged in over the Fourth of July holiday.

¶10 On the last day of trial, the District Court instructed the jury as to the specific elements of each count. The jury was not instructed to consider the 2015 and 2016 incidents separately in determining whether Tipton was guilty of Count I. During closing arguments, the State noted that each count is separate, but not each incident. The State emphasized that any of the incidents related to Count I were sufficient for a finding of guilty:

So, with [V.B.] we talked about three different things that [Tipton] did. So, the way that's charged is it's charged as one or more. So, we talked about three things [undressing in the camper in 2015, exposing his penis and showing her a pornographic image in 2016]. If you think he only did one of those things, then it's still guilty. If you find that he did all three of those things, it's guilty.

¶11 The jury found Tipton guilty on all three counts.

STANDARD OF REVIEW

¶12 Ineffective assistance of counsel (IAC) claims present mixed questions of law and fact and are reviewed de novo. State v. Johnston , 2010 MT 152, ¶ 7, 357 Mont. 46, 237 P.3d 70 (citing State v. Kougl , 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095 ).

DISCUSSION

1. Whether Tipton's trial counsel provided ineffective assistance of counsel by failing to challenge the statutory basis for Count I when the statute upon which the charge was based did not go into effect until after one of the alleged incidents occurred.

¶13 This Court will only review an IAC claim on direct appeal if the basis for the claim can be found in the record or if there is no plausible justification for defense counsel's performance. State v. Larsen , 2018 MT 211, ¶ 8, 392 Mont. 401, 425 P.3d 694. If there is no legitimate reason for the defense counsel's actions, there is no need to inquire as to the reasoning behind the choices made. State v. Crider , 2014 MT 139, ¶ 36, 375 Mont. 187, 328 P.3d 612 ; Kougl , ¶ 15.

¶14 Tipton argues...