January 27 2015
DA 13-0256
Case Number: DA 13-0256
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 24N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
EDWIN ALLEN SHEARER,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Prairie, Cause No. DC 11-02
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; C. Mark Fowler,
Appellate Services Bureau Chief, Helena, Montana
Gary Bunke, Prairie County Attorney; Joel Thompson, Ole Olson,
Special Deputy Prairie County Attorneys, Terry, Montana
Submitted on Briefs: December 31, 2014
Decided: January 27, 2015
Filed:
___________________________________
Clerk
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Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this
case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its
case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable
cases published in the Pacific Reporter and Montana Reports.
¶2 Edwin Allan Shearer was charged with Sexual Intercourse Without Consent, in violation of § 45-
5-503(1), MCA, on September 20, 2011. In July 2012 a jury trial was held, resulting in Shearer’s
conviction. The underlying facts for this case are not at issue, and the only matter before this Court is
whether the trial court properly exercised its discretion when denying one of Shearer’s jury instructions
in favor of the State’s instruction.
¶3 During a final pretrial conference on July 18, 2012, Shearer’s counsel submitted a proposed
instruction stating a conviction required the State to prove Shearer had sexual intercourse with the
victim, the sexual intercourse was without consent, and that Shearer “both (a) knew he was having
sexual intercourse with [the victim] and (b) he knew that she did not consent to such intercourse.” The
State objected, arguing the proposed instruction added an additional element to the offense requiring
Shearer to know the victim had not consented to intercourse. The District Court sustained the
objection, instructing the jury that a conviction required proof of sexual intercourse with the victim, that
the act of sexual intercourse was without consent, and that Shearer had acted knowingly.
¶4 A district court has broad discretion when instructing a jury. State v. Hall, 2003 MT 253, ¶ 24,
317 Mont. 356, 77 P.3d 239. We review a trial court’s jury instructions to determine whether the
instructions, as a whole, fully and fairly instruct the jury on the applicable law. State v. Swann, 2007 MT
126, ¶ 32, 337 Mont. 326, 160 P.3d 511. Section 45-5-503(1), MCA, states a person who knowingly has
sexual intercourse without consent with another person commits the offense of Sexual Intercourse
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Without Consent. The instruction given by the District Court fairly and accurately instructed the jury on
the applicable law.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal
Operating Rules, which provides for noncitable memorandum opinions. The issue in this case is one of
judicial discretion, and there clearly was not an abuse of discretion.
¶6 Affirmed.
/S/ JIM RICE
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
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