State v. C. Valenzuela

09/28/2021

DA 20-0032
Case Number: DA 20-0032

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 244

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CARLOS VALENZUELA,

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DC-18-3842
Honorable Luke Berger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana

Jed C. Fitch, Beaverhead County Attorney, Dillon, Montana

Submitted on Briefs: September 22, 2021

Decided: September 28, 2021

Filed:

c ir-641.—if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Carlos Valenzuela was convicted by a jury in the Fifth Judicial District Court,

Beaverhead County, of sexual assault and incest involving his biological son, C.J.V.

Valenzuela appeals, contending sexual assault is a lesser included offense of incest and that

his convictions for both violate double jeopardy. Valenzuela presents the following issues

for review:

1. Whether Valenzuela’s convictions for sexual assault and incest violate the double
jeopardy clause of the United States Constitution, the Montana Constitution, and
§ 46-11-410, MCA.

2. Whether Valenzuela’s counsel was ineffective for failing to object to Valenzuela’s
convictions based on a double jeopardy violation.

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In April 2011, C.J.V. reported to his kindergarten teacher that he was

inappropriately touched by his father, Valenzuela. His teacher informed law enforcement

about the incident and indicated C.J.V. had engaged in sexually inappropriate behavior

towards other children. Law enforcement and the Montana Department of Public Health

and Human Services, Child and Family Services Division, investigated the allegation and

prohibited Valenzuela from returning home. C.J.V. then told his mother that the incident

had not occurred and his mother relayed C.J.V.’s recantation through a letter that she

provided to law enforcement. Thereafter, Valenzuela was allowed to return home and

law enforcement closed the investigation.

2
¶4 In September 2012, Valenzuela was sentenced to prison for an unrelated offense of

sexual intercourse without consent. He received a sentence of twenty years to the

Department of Corrections with fifteen years suspended. While Valenzuela was serving

his sentence, C.J.V. and his mother moved to Idaho and C.J.V.’s mother obtained a divorce

from Valenzuela. Valenzuela was released from prison in August 2017 and relocated to

California. In 2018, C.J.V.’s mother planned a trip to California to attend a funeral and

visit Valenzuela. C.J.V. said he did not want to go to California and elected, instead, to

stay with relatives. When C.J.V.’s mother returned, C.J.V. told her he did not want to visit

his father because the abuse he had alleged in 2011 had actually occurred. His mother

reported the disclosure to law enforcement in Idaho and the investigation—which was

transferred back to the Beaverhead County Police Department in Montana—was reopened.

¶5 In 2018, the State charged Valenzuela with sexual assault and incest for the incident

which C.J.V. had initially reported back in 2011. A jury trial was held on July 11 and 12,

2019. At trial, C.J.V., then fourteen years old, testified that Valenzuela touched his penis,

over his underwear, on one occasion for several minutes. C.J.V. also indicated that

Valenzuela told him that he would hurt him if he told anyone. C.J.V. confirmed his

recantation of the incident was due to his fear of being hurt by Valenzuela. C.J.V. also

testified that Valenzuela would watch pornography and masturbate in front of him. The

jury found Valenzuela guilty of both sexual assault and incest. The District Court imposed

two concurrent sentences of 100 years to the Montana State Prison, with credit for 438 days

served and a forty-year parole restriction.

3
¶6 On appeal, Valenzuela contends that sexual assault is an included offense of incest

and his statutory and constitutional protections against double jeopardy were therefore

violated when he was convicted and sentenced for both offenses. Valenzuela asserts this

Court should exercise plain error review because his convictions for both sexual assault

and incest, which arose out of the same occurrence, produced a manifest miscarriage of

justice. Finally, Valenzuela also claims he was denied effective assistance of counsel when

his counsel failed to raise these alleged double jeopardy violations.

STANDARDS OF REVIEW

¶7 Determinations regarding Montana’s statutory double jeopardy protections under

§ 46-11-410, MCA, present questions of law that this Court reviews for correctness.

State v. Williams, 2010 MT 58, ¶ 13, 355 Mont. 354, 228 P.3d 1127 (citing State v. Becker,

2005 MT 75, ¶ 14, 326 Mont. 364, 110 P.3d 1). A legal question on the double jeopardy

clause is reviewed de novo to determine whether the district court’s interpretation of the

law is correct. State v. Guillaume, 1999 MT 29, ¶ 7, 293 Mont. 224, 975 P.2d 312.

Unpreserved issues alleging violations of a fundamental constitutional right are reviewable

under the common law plain error doctrine. State v. Barrows, 2018 MT 204, ¶ 8,

392 Mont. 358, 424 P.3d 612. Plain error review is appropriate when failure to review the

alleged error “may result in a manifest miscarriage of justice, leave unsettled the question

of the fundamental fairness of the proceedings, or compromise the integrity of the judicial

process.” Barrows, ¶ 8 (citations omitted).

4
¶8 A claim of ineffective assistance of counsel constitutes a mixed question of law and

fact that this Court reviews de novo. State v. Brandt, 2020 MT 79, ¶ 10, 399 Mont. 415,

460 P.3d 427. Where ineffective assistance of counsel claims are based on facts of record

in the underlying case, they must be raised in the direct appeal. Brandt, ¶ 10.

DISCUSSION

¶9 1. Whether Valenzuela’s convictions for sexual assault and incest violate the double
jeopardy clause of the United States Constitution, the Montana Constitution, and
§ 46-11-410, MCA.

¶10 Preliminarily, we must address whether it is appropriate to consider Valenzuela’s

double jeopardy claim. Although Valenzuela did not raise a double jeopardy objection at

trial, this Court may nonetheless discretionarily review an issue not raised at trial which

concerns a fundamental constitutional right. We have said:

The purpose of the plain error doctrine is to correct an error not objected to
at trial that affects the fairness, integrity, and public reputation of judicial
proceedings. The plain error doctrine may be used in situations that implicate
a defendant’s fundamental constitutional rights, and where failing to review
the alleged error may result in a manifest miscarriage of justice, leave
unsettled the question of the fundamental fairness of the proceedings, or
compromise the integrity of the judicial process.

Barrows, ¶ 11 (quoting State v. Lawrence, 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968).

We must first determine whether Valenzuela’s fundamental constitutional rights have been

implicated.

¶11 The Fifth Amendment to the United States Constitution and Article II, Section 25,

of the Montana Constitution protect citizens from being placed twice in jeopardy for the

same offense. U.S. Const. amend. V (“[n]or shall any person be subject for the same

offence to be twice put in jeopardy . . . .”); Mont. Const. art. II, § 25 (“No person shall be

5
again put in jeopardy for the same offense previously tried in any jurisdiction.”). The

prohibition against double jeopardy “was designed to protect an individual from being

subjected to the hazards of trial and possible conviction more than once for an alleged

offense.” Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 223 (1957).

The underlying idea, one that is deeply ingrained in at least the
Anglo-American system of jurisprudence, is that the State with all its
resources and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.

Green, 355 at 187-88, 78 S. Ct. at 223.

¶12 Valenzuela asserts his convictions for sexual assault and incest, which arose out of

the same offense and the same occurrence, violate his constitutional right against being

placed twice in jeopardy, thus necessitating plain error review. Assessing the validity of

the alleged error, i.e., conducting the review, must be distinguished from the threshold

determination that plain error review is appropriate. Here, Valenzuela has asserted a claim

that, if valid, would implicate a significant constitutional right. Nothing could be more

egregious than being convicted and punished for a crime not allowed by law. Standing

convicted and sentenced for two offenses, if one offense were indeed a lesser included

offense of the other, would constitute a manifest miscarriage of justice. Accordingly, we

conclude Valenzuela’s claim implicates a fundamental constitutional right and that plain

error review is appropriate to determine if his constitutional right against double jeopardy

has, in fact, been violated.

6
¶13 Valenzuela asserts that sexual assault is an included offense of incest and his

convictions for both offenses, arising out of the same incident, violate his constitutional

and statutory double jeopardy rights. Valenzuela’s double jeopardy rights are protected by

the Fifth Amendment of the United States Constitution, enforceable in Montana through

the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794-95, 89 S. Ct. 2056,

2062-63 (1969), as well as under Article II, Section 25 of the Montana Constitution, which

bars multiple convictions for the same offense. Valenzuela also separately asserts his

statutory right against double jeopardy as provided by § 46-11-410, MCA, Montana’s

“multiple charges” statute.

¶14 In determining whether a defendant can be charged and convicted of violating two

statutes for the same act or transaction under Article II, Section 25, of the

Montana Constitution, this Court has adopted the same general test prescribed by the

Fifth Amendment of the United States Constitution. See State v. Minez, 2003 MT 344,

¶ 33, 318 Mont. 478, 82 P.3d 1; State v. Savaria, 284 Mont. 216, 222, 945 P.2d 24, 28

(1997) (“The constitutional prohibition against double jeopardy is found in the Fifth

Amendment . . . Article II, Section 25, of the Montana Constitution, provides the same

protection.”). Specifically, this Court employs the “same elements” test set forth in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). The Blockburger test

states:

Each of the offenses created [must] require proof of a different element. The
applicable rule is that where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.

7
Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. The Blockburger test is a “test of statutory

construction . . . to determine whether [the legislature] intended the same conduct to be

punishable under two criminal provisions.” Ball v. United States, 470 U.S. 856, 861,

105 S. Ct. 1668, 1671 (1985); State v. Crowder, 248 Mont. 169, 178, 810 P.2d 299,

305 (1991). Since Blockburger, the United States Supreme Court “has recognized that the

Blockburger test focuses on the proof necessary to prove the statutory elements of each

offense, rather than on the actual evidence to be presented at trial.” Illinois v. Vitale,

447 U.S. 410, 416, 100 S. Ct. 2260, 2265 (1980). “The dispositive question is whether the

legislature intended to provide for multiple punishments. The Blockburger test is merely

one rule of statutory construction to aid in the determination of legislative intent . . . The

ultimate question remains one of legislative intent.” State v. Close, 191 Mont. 229, 246,

623 P.2d 940, 949 (1981) (citing Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432

(1980)).

¶15 In Montana, the Blockburger test must also be applied “with reference to the statutes

defining each offense and not with reference to the facts of the individual case.”

State v. Ritchson, 193 Mont. 112, 116, 603 P.2d 234, 237 (1981). In states that have

employed the alternative “factual approach,” the facts of the individual case—rather than

the statutory elements of the crimes—determine whether multiple punishments are

allowed; that is, in some jurisdictions, “the test is to eliminate the facts in the individual

case which are needed to prove one offense and then determine if the remaining facts will

prove the other offense.” Ritchson, 193 Mont at 117, 603 P.2d at 237 (citing

State v. Mitchell, 478 P.2d 517 (Ariz. 1970)). “Montana has never used the factual

8
approach, however, and such an approach is inconsistent with the statutory and case law of

this state.” Ritchson, 193 Mont. at 117, 603 P.2d at 237.

¶16 In addition to these constitutional protections, Montana affords additional

statutory protections against double jeopardy through §§ 46-11-410 and -503, MCA.

Section 46-11-410, MCA, addresses double jeopardy when the same transaction may

establish multiple charges or the commission of more than one offense.

Section 46-11-503, MCA, addresses double jeopardy involving former prosecutions. Here,

the relevant statute is § 46-11-410, MCA, and Valenzuela asserts his multiple convictions

for incest and sexual assault violate § 46-11-410(2)(a), MCA, because sexual assault is an

“included offense”—as defined in § 46-1-202(9), MCA—of incest.

¶17 Section 46-11-410, MCA, provides that when a person’s conduct in one transaction

constitutes multiple offenses, the State may prosecute that person for each offense,

allowing a prosecution for multiple offenses—subject to five enumerated limitations.

See § 46-11-410(1)-(2), MCA. The two relevant limitations in this case are

§ 46-11-410(2)(a) and § 46-11-410(2)(d), which, respectively, protect a person from being

prosecuted for more than one offense if “one offense is included in the other” or

“the offenses differ only in that one is defined to prohibit a specific instance of the

conduct.” Section 46-11-410(2)(a), (d), MCA. Valenzuela raises an objection under only

§ 46-11-410(2)(a), presumably because this Court’s precedent does not analyze

§ 46-11-410(2)(a) and § 46-11-410(2)(d) separately. We have explained that

“evaluating double jeopardy defenses brought under these two provisions has employed a

single standard in which we consider the elements of each charge to determine whether

9
each charge requires a proof of a fact that the other does not (if so, prosecution for each

charge is not statutorily prohibited).” State v. Weatherell, 2010 MT 37, ¶ 12,

355 Mont. 230, 225 P.3d 1256; Brandt, ¶ 18. See also State v. Matt, 2005 MT 9, ¶ 11-15,

325 Mont. 340, 106 P.3d 530; State v. McQuiston, 277 Mont. 397, 406-07, 922 P.2d 519,

525 (1996), rev’d in part on other grounds; State v. Sor-Lokken, 247 Mont. 343, 351-52,

805 P.2d 1367, 1373 (1991); State v. Hall, 224 Mont. 187, 190-92, 728 P.2d 1339,

1341-42 (1986), rev’d on other grounds.1 Our precedent thus indicates that the

constitutional test and the § 46-11-410(2)(a) and (d), MCA, test for multiple charges are

identical.

¶18 Under § 46-11-410(2)(a) and (d), MCA’s test, this Court must determine “whether

one of the two charges is an ‘included offense,’ which is statutorily defined as an offense

that ‘is established by proof of the same or less than all the facts required to establish the

commission of the offense charged.’” Weatherell, ¶ 12 (quoting § 46-1-202(9)(a), MCA,

which defines the term “included offense”). “Where each offense requires proof of a ‘fact’

which the other does not, there cannot be a specific instance of conduct which is included

in the other offense.” State v. Hooper, 2016 MT 237, ¶ 11, 385 Mont. 14, 386 P.3d 548

(citing Weatherell, ¶ 12). Moreover, according to this Court, the term “facts,” as used in

§ 46-1-202(9)(a), MCA, “refers to the statutory elements of the offense and not the

1
Contrary to the dissent’s analysis, in Weatherell we correctly recognized that our decisions in
Hall and Sor-Lokken were decided under this singular test and that there was no distinction
between the test to be applied under § 46-11-410(2)(a), MCA, and § 46-11-410(2)(d), MCA.
10
individual facts of each case.” State v. Smith, 276 Mont. 434, 443, 916 P.2d 773,

778 (1996).2

¶19 Here, both § 46-11-410(2)(a) and (d), MCA, and Blockburger require this Court to

determine whether the statutory elements for sexual assault are the same or less than incest

or—alternatively—whether each offense requires proof of an additional element. We now

turn to the Blockburger test to address Valenzuela’s constitutional and statutory

double jeopardy claims.

¶20 Sexual assault, as provided for in § 45-5-502(1), MCA, requires proof that a person:
(1) knowingly

(2) subjects another person to

(3) any sexual contact

(4) without consent.

The statutory element of “without consent” may be proven by facts establishing the victim

was less than fourteen years old and the offender was three or more years older than the

victim. Section 45-5-502(5)(a)(ii), MCA (“[C]onsent is ineffective under this section if

the victim is . . . less than 14 years old and the offender is 3 or more years older than the

victim.”). The statutory element of “without consent” is nonetheless still required when

the victim is less than fourteen and the offender is three or more years older; the legislature

has merely created an alternative means for proving the element.

2
In essence, the dissent’s § 46-11-410(2), MCA, analysis, by identifying and comparing “sub-
variants” of sexual assault and incest, comes dangerously close to the fact-based approach that this
Court has previously rejected.
11
¶21 Incest, as provided for in § 45-5-507(1), MCA, requires proof that a person:

(1) knowingly

(2) marries, cohabits with, has sexual intercourse with, or has sexual contact with

(3) an ancestor, a descendant, a brother or sister of the whole or half blood, or any

stepson or stepdaughter.

¶22 Comparing the elements of each offense as Blockburger requires, it is clear both

offenses require sexual contact and the mental state of “knowingly.” However, each

offense requires an element that the other does not: sexual assault requires that the conduct

be committed without consent; incest requires the sexual contact be with a descendant.

Incest prohibits a person from having sexual contact with a descendent regardless of the

age of the descendent or whether the descendent consented. Sexual assault prohibits a

person from having sexual contact with a person who does not consent. Lack of consent

remains an element of the offense regardless of the victim’s age, and the state must present

evidence at trial to avail itself of the statutory provision regarding consent when consent is

ineffectual. The fact that the legislature intended to protect children from sexual contact

by older people by making a young victim’s consent ineffectual does not remove the

element of “without consent” from the offense of sexual assault. Rather, it reflects the

Montana Legislature’s intent that the element of “without consent” may be established by

proof of the ages of the victim and defendant.

¶23 Specifically, the question confronting this Court is whether the Montana Legislature

intended to authorize cumulative punishments for sexual assault and incest. There are

several bases for concluding that the legislature did not intend to preclude punishment for

12
both sexual assault and incest. First, application of the Blockburger test does not result in

the conclusion that sexual assault is a lesser included offense of incest. The offenses have

different statutory elements. Blockburger’s analysis must stand on the working of the

statutes alone.

¶24 Second, the public policy and purpose behind these laws are both important tools

for determining legislative intent. “Incest is a qualitatively unique sexual offense because

the act itself is unlawful whether or not it is consensual or a minor is involved and

especially because it requires two participants.” State v. Kline, 2016 MT 177, ¶ 21, 384

Mont. 157, 376 P.3d 132 (emphasis added). “Public policy otherwise spurns the notion

that an adult may use a parental relationship to take sexual advantage of his minor child.”

Kline, ¶ 37 (Baker, J., concurring). The public policy and purpose behind sexual assault

laws is to protect individuals from nonconsensual and unwanted sexual contact and, in

particular, protect those who are young and vulnerable in relation to older individuals. If

a defendant wants to commit incest, he must pay a price. If a defendant wants to commit

a sexual assault against someone without their consent, he must pay a higher price. The

legislature manifested an intention to serve these two different interests in enacting the

statutes. Given the strong societal interests underlying these distinct offenses, it strains

credulity to hold that if a victim is older than fourteen, a defendant can be convicted of

both incest and sexual assault; whereas, when the victim is younger, a defendant can only

be convicted of one offense.

¶25 In Hall, this Court concluded the offense of sexual assault was included in the

offense of incest by reasoning that the prosecution’s proof of “sexual contact” was the same

13
for both sexual assault and incest, effectively eliminating the element of “without consent.”

Hall, 224 Mont. at 191, 728 P.2d at 1341, rev’d on other grounds by Montana v. Hall

(Hall II), 481 U.S. 400, 107 S. Ct. 1825 (1987) (reversing our decision in Hall that retrial

of the defendant would violate double jeopardy, while leaving intact Hall’s conclusion

regarding sexual assault and incest). However, Hall’s conclusion, for the reasons we have

just stated, was incorrect and is inconsistent with our precedent. Rather than correctly

applying the Blockburger element-based test, the Court in Hall applied the

“factual approach” which this Court specifically rejected in Ritchson because it was

inconsistent with our statutes and case law in Montana. See Ritchson, 193 Mont at 117,

603 P.2d at 237. The Court’s faulty reasoning in Hall is manifested in its statement that

“Hall’s incestuous conduct constituted the same offense in law and in fact as sexual assault.

Therefore, the double jeopardy clause prohibits Hall’s retrial.” Hall, 224 Mont. at 192,

728 P.2d at 1342 (emphasis added).

¶26 Following Hall, this Court decided State v. Sor-Lokken, 247 Mont. 343,

805 P.2d 1367 (1991). We held the defendant’s convictions for both sexual assault and

incest did not violate his double jeopardy protections, distinguishing Hall because the

victim in Sor-Lokken was fifteen. Sor-Lokken, 247 Mont. at 352, 805 P.2d at 1373.

Sor-Lokken demonstrates the absurd result that is reached by treating sexual assault as an

included offense of incest based on the age of the victim. In Hall, the defendant escaped

multiple punishments despite the fact that his victim was younger than the victim in Sor-

Lokken; in Sor-Lokken, the defendant was punished for both sexual assault and incest

because the victim was one year older.

14
¶27 Valenzuela’s convictions for sexual assault and incest committed against his son,

who was less than fourteen years old, do not violate double jeopardy. The elements, under

the Blockburger test, for the offenses of incest and sexual assault are different. Sexual

assault requires the element of “without consent” regardless of the victim’s age. Our

reasoning in Hall is inconsistent with the statutory element approach of Blockburger and

our precedent. We overrule Hall’s conclusion that sexual assault is an included offense of

incest and clarify that our decision in Sor-Lokken distinguishing Hall should not have been

based on the victim’s age. The element of “without consent” applies in all sexual assaults,

regardless of the age of the victim. Sexual assault is not a lesser included offense of incest.

¶28 2. Whether Valenzuela’s counsel was ineffective for failing to object to Valenzuela’s
convictions based on a double jeopardy violation.

¶29 This Court reviews claims of ineffective assistance of counsel through the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984). A defendant asserting ineffective assistance of counsel has a burden to demonstrate

by a preponderance of the evidence that: (1) counsel’s performance was deficient; and

(2) the deficient performance prejudiced the defense. Baca v. State, 2008 MT 371, ¶ 16,

346 Mont. 474, 197 P.3d 948. A trial counsel’s performance is deficient if it falls “below an

objective standard of reasonableness measured under prevailing professional norms and in

light of the surrounding circumstances.” State v. Brown, 2011 MT 94, ¶ 12, 360 Mont.

278, 253 P.3d 859. There is a “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance” and the defendant “must overcome the

presumption that, under the circumstances, the challenged action might be considered

15
sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To establish that the

defendant was prejudiced by counsel’s deficient performance, a defendant must

demonstrate a reasonable probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Brown, ¶ 17.

¶30 Here, we have concluded that sexual assault is not a lesser included offense of incest.

This was the basis upon which Valenzuela asserts he was denied effective assistance of

counsel. Valenzuela has, accordingly, failed to demonstrate counsel’s representation was

deficient or that there was a reasonable probability that the outcome would have been

different if his counsel had raised a double jeopardy claim.

CONCLUSION

¶31 We exercise plain error review to conclude that Valenzuela’s convictions for both

sexual assault and incest are not barred by double jeopardy because the offenses contain

different elements and are designed to protect different societal interests.

¶32 Valenzuela’s convictions for incest and sexual assault are affirmed.

/S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE

16
Justice Dirk Sandefur, dissenting.

¶33 I concur that Valenzuela’s assertions of error warrant plain error review and that his

concurrent convictions on the separate offenses of sexual assault and incest based on the

same factual transaction or conduct did not violate his state and federal constitutional rights

against double jeopardy under the same or included statutory elements test recognized in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932), and Brown v. Ohio, 432

U.S. 161, 165-69, 165, 97 S. Ct. 2221, 2225-27 (1977), and as subsequently codified in

Montana in §§ 46-11-410(2)(a), 46-1-202(9), and (23), MCA (barring multiple convictions

based on the “same transaction” if “one offense is included in the other” and defining

“included offense” as one “established by proof of the same or less than all the facts

required to establish the commission of the [other]” – formerly §§ 46-11-501(1), (2)(a),

and -502(1), MCA (1978)). I concur that Valenzuela’s sexual assault and incest

convictions did not constitute prohibited double jeopardy under the constitutional

Blockburger test or § 46-11-410(2)(a) because, as defined by statute, each of the particular

sub-variants of those offenses at issue required proof of a different factual element than the

other. I nonetheless dissent, however, because the Court inexplicably overlooks the

distinction between the relatively simple and straightforward same or included elements

test under Blockburger and §§ 46-11-410(2)(a) and 46-1-202(9), MCA, and the more

restrictive Montana statutory double jeopardy protection provided by § 46-11-410(2)(d),

MCA (barring two convictions based on the underlying fact-based “same transaction”

where “the offenses differ only in that one is defined to prohibit a specific instance of the

conduct” generally prohibited by the other – formerly §§ 46-11-501(1) and -502(4), MCA).

17
Compounding matters, the Court’s disregard of § 46-11-410(2)(d), MCA, then leads to an

equally inexplicable mischaracterization and disregard of our prior statutory analysis and

holding in State v. Hall, 224 Mont. 187, 728 P.2d 1339 (1986). Upon close scrutiny, Hall’s

application of § 46-11-410(2)(d), MCA, to the particular sub-variants of sexual assault and

incest there at issue was manifestly correct and entirely consistent with our subsequent

application of § 46-11-410(2)(d), MCA, in State v. Sor-Lokken, 247 Mont. 343, 805 P.2d

1367 (1991), with the only difference being a different result based on the distinct sub-

variant of sexual assault at issue there.

A. Fifth Amendment Double Jeopardy Protection.

¶34 The Double Jeopardy clause of the Fifth Amendment to the United States

Constitution guarantees that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V. The Fifth Amendment double

jeopardy protection applies to state criminal proceedings through the Fourteenth

Amendment Due Process clause. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056,

2062 (1969). In pertinent part, the Fifth Amendment double jeopardy protection prohibits

“multiple punishments for the same offense” in the same prosecution. Brown, 432 U.S. at

165, 97 S. Ct. at 2225; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076

(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 803, 109 S. Ct.

2201, 2206-07 (1989). While the legislative branch is “free . . . to define crimes and fix

punishments,” the Fifth Amendment prohibits convictions effecting “more than one

punishment for [what is essentially] the same offense.” Brown, 432 U.S. at 165, 97 S. Ct.

at 2225. In the scenario where multiple convictions in the same prosecution are based on

18
the same underlying factual “act or transaction,” the general test for determining whether

the multiple convictions violate the Fifth Amendment double jeopardy prohibition is

whether one offense is the same as or included in another. Blockburger, 284 U.S. at 304,

52 S. Ct. at 182 (same offense/elements test). See also Brown, 432 U.S. at 165-69, 97

S. Ct. at 2225-27 (holding that a “greater offense” and a “lesser included offense” are the

“same offense” under the Blockburger test). Accord Illinois v. Vitale, 447 U.S. 410,

415-16, 100 S. Ct. 2260, 2264-65 (1980).1

B. Montana Constitutional Double Jeopardy Protection.

¶35 Apart from the United States Constitution, the Montana Constitution independently

guarantees that “[n]o person shall be again put in jeopardy for the same offense previously

tried in any jurisdiction.” Mont. Const. art. II, § 25. Despite seemingly narrower language,

we have construed Article II, Section 25, inter alia, to at least co-extensively protect the

criminally accused from “multiple prosecutions” in the same prosecution “for offenses

arising out of the same transaction.” State v. Savaria, 284 Mont. 216, 222-25, 945 P.2d

1
The Fifth Amendment also protects the criminally accused “against a second prosecution for the
same offense after [a prior] acquittal . . . [or] conviction” on the same or an included offense.
Pearce, 395 U.S. at 717, 89 S. Ct. at 2076. These additional aspects of the constitutional double
jeopardy prohibition “protect[] the accused from attempts to relitigate the facts underlying a prior
acquittal . . . and from attempts to secure additional punishment after a prior conviction and
sentence.” Brown, 432 U.S. at 165-66, 97 S. Ct. at 2225 (internal citations omitted). “Even if two
offenses are sufficiently different” to not constitute essentially the same offense and thus “permit
the imposition of consecutive sentences, successive prosecutions will be barred in some
circumstances where the second prosecution requires the relitigation of factual issues already
resolved by the first.” Brown, 432 U.S. at 166 n.6, 97 S. Ct. at 2226 (citing Ashe v. Swenson, 397
U.S. 436, 442-47, 90 S. Ct. 1189, 1193-96 (1970)). In such cases, strict application of a same
elements test “would . . . permit[] imposition of consecutive sentences had the charges been
consolidated in a single proceeding.” Brown, 432 U.S. at 166 n.6, 97 S. Ct. at 2226 (citing Ebeling
v. Morgan, 237 U.S. 625, 35 S. Ct. 710 (1915)).

19
24, 28-30 (1997) (Article II, Section 25 “provides the same protection” as Fifth

Amendment – holding that multiple convictions on separate counts of theft did not violate

Article II, Section 25 regardless of alternative availability of all-encompassing theft by

common scheme charge); State v. Minez, 2003 MT 344, ¶ 33, 318 Mont. 478, 82 P.3d 1.2

Based on the similar Fifth Amendment protection, the Blockburger same elements test is

the general test for determining whether multiple convictions in the same prosecution are

based on the same transaction under Article II, Section 25, of the Montana Constitution.

See Minez, ¶ 33; Savaria, 284 Mont. at 222, 945 P.2d at 28; State v. Coleman, 185 Mont.

299, 310-11, 605 P.2d 1000, 1008 (1979); State v. Blinzler, 183 Mont. 300, 309-10, 599

P.2d 349, 355 (1979); State v. Davis, 176 Mont. 196, 199-200, 577 P.2d 375, 377 (1978)

(citing Blockburger and State v. Marchindo, 65 Mont. 431, 211 P. 1093 (1922)).

C. Additional Montana Statutory Double Jeopardy Protection.

¶36 Separate and apart from the double jeopardy protections provided by the United

States and Montana constitutions, Montana’s 1973 Criminal Code separately included, in

a single statute, a comprehensive scheme of statutory double jeopardy protection which, in

essence, codified certain existing federal and state constitutional double jeopardy

protections and provided additional statutory protection above the constitutional floor. See

§ 95-1711 RCM (1947) (1973 Mont. Laws ch. 513, § 6). Section 95-1711 RCM (1947)

2
Compare State v. Guillaume, 1999 MT 29, ¶¶ 8 and 16, 293 Mont. 224, 975 P.2d 312 (Article II,
Section 25 protects against “multiple prosecutions for offenses arising out of the same transaction”
and “multiple punishments . . . for the same offense” but “affords greater protection” than Fifth
Amendment “against multiple punishments” in the same prosecution “for the same offense” –
holding that consecutive sentences on felony assault (reasonable apprehension of serious bodily
injury variant) and separate dangerous weapon enhancement violated Article II, Section 25).
20
(1973), defined the terms “same transaction” and “included offense” as referenced in the

ensuing Revised Code subsections later redesignated as §§ 46-11-410, -503, and -504,

MCA, as amended. See § 46-1-202(9) and (23), MCA (“same transaction” and “included

offense” definitions – originally § 95-1711(1)(a)-(b), RCM (1947) (1973), subsequently

redesignated as § 46-11-501(1)-(2), MCA (1978), and subsequently repealed and reenacted

as § 46-1-202(9) and (23), MCA (1991 Mont. Laws ch. 800, §§ 2 and 264)); § 46-11-410,

MCA (in re multiple convictions based on the same underlying factual transaction –

originally § 95-1711(2), RCM (1947) (1973), subsequently redesignated as § 46-11-502,

MCA (1978), and renumbered by Code Commissioner in 1991 as § 46-11-410, MCA);

§ 46-11-503, MCA (in re subsequent prosecution based on the same transaction at issue in

a prior prosecution – originally § 95-1711(3), RCM (1947) (1973), and subsequently

redesignated as § 46-11-503, MCA (1978)); § 46-11-504, MCA (in re subsequent

prosecution based on the same transaction in a prior prosecution in another jurisdiction –

originally § 95-1711(4), RCM (1947) (1973), and subsequently redesignated as § 46-11-

504, MCA (1978)). See also, e.g., State v. Sword, 229 Mont. 370, 375, 747 P.2d 206, 209

(1987) (noting that § 46-11-504, MCA (originally § 95-1711(4), RCM (1947) (1973)),

provides “greater protection from double jeopardy than . . . [the constitutional] Blockburger

[test]” and that mere application of the Blockburger same elements test would “strip the

defendant of” granted “statutory protection”). Accord State v. Tadewaldt, 277 Mont. 261,

268, 922 P.2d 463, 467 (1996) (“[w]hile the Blockburger ‘elements’ test generally is

appropriate in analyzing double jeopardy arguments relating to whether there are two

offenses or only one . . . , the plain language of § 46-11-504(1), MCA, mandates a broader

21
conduct- and transaction-based analysis than Blockburger provides”); State v. Couture,

1998 MT 137, ¶¶ 9-12, 289 Mont. 215, 959 P.2d 948 (§ 46-11-504, MCA, “provides

criminal defendants with greater protection against double jeopardy than the” Blockburger

same elements test – citing Sword and Tadewaldt).3

D. Threshold Constitutional and Statutory Double Jeopardy Criteria—Same
Underlying Factual Conduct or Transaction.

¶37 As a threshold matter, the federal and state constitutional double jeopardy protection

applies only to criminal offenses based on the same underlying factual transaction or

conduct, i.e., the same transaction. See Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. As

referenced in Montana’s double jeopardy statutes, §§ 46-11-410, -503, and -504, MCA, the

Legislature has further elaborated, in pertinent part, that the term “same transaction”

includes “conduct consisting of a series of acts or omissions that are [either] motivated by:

(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the

accomplishment of that objective[] or (b) a common purpose or plan that results in the

repeated commission of the same offense or effect upon the same person.” Section 46-1-

202(23), MCA. Here, as noted by the Court, Valenzuela’s incest and sexual assault

3
Section 95-1711, RCM (1947) (1973) derived from the Model Penal Code § 1.07 (Am. Law Inst.
1962). State v. Wolfe, 250 Mont. 400, 409-10, 821 P.2d 339, 344 (1991) (holding that § 46-11-
502(2), MCA (now § 46-11-410(2)(b), MCA), applies only to inchoate crimes). The 1973
Criminal Code was largely based on the Illinois adaptation of the Model Penal Code enacted as
the Illinois Criminal Code of 1961. Annotator’s Note to 1973 Mont. Laws ch. 513, § 1, Montana
Criminal Code of 1973 Annotated (Montana Criminal Law Commission 1974). Though it
promulgated § 1.07 prior to the 1969 holding in Benton, 395 U.S. at 794, 89 S. Ct. at 2062
(applying Fifth Amendment double jeopardy protection to the States through the Fourteenth
Amendment), the ALI intended § 1.07 to at least be “generally consistent with” then-existing Fifth
Amendment jurisprudence. Explanatory Note for Sections 1.07-1.11, Model Penal Code § 1.07
(Am. Law Inst. 1962).

22
convictions are both based on a single instance in 2011 when he “touched [the] penis” of

his kindergarten-aged son “over his underwear . . . for several minutes.” Opinion, ¶ 5. The

State does not dispute, and the record clearly reflects, that the subject convictions were

both based on the “same transaction” as referenced in the constitutional Blockburger test

and § 46-11-410(1), MCA.

E. Included Offense Analysis—Constitutional Blockburger Test and Similar
Statutory Double Jeopardy Protection Under § 46-11-410(2)(a), MCA.

¶38 Under the constitutional Blockburger same elements test, two offenses based on the

same transaction are the “same offense” unless each includes a required statutory element

of proof which the other does not. State v. McQuiston, 277 Mont. 397, 405, 922 P.2d 519,

524 (1996), overruled in part on other grounds by State v. Herman, 2008 MT 187, ¶ 12

n.1, 343 Mont. 494, 188 P.3d 978; Brown, 432 U.S. at 165-69, 97 S. Ct. at 2225-27;

Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. Consequently, the Blockburger test

exclusively focuses on the similarity of the statutory elements of the subject offenses as a

matter of law, rather than the actual evidence presented in a particular case. McQuiston,

277 Mont. at 405, 922 P.2d at 524; Coleman, 185 Mont. at 311-12, 605 P.2d at 1008-09.

If each offense includes an essential statutory element of proof which the other does not,

“the Blockburger test is satisfied” regardless of any “substantial overlap in the proof”

alleged or presented “to establish the crimes” in a particular case. McQuiston, 277 Mont.

at 405, 922 P.2d at 524 (citing Ianelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct.

1284, 1294 (1975)); Vitale, 447 U.S. at 416, 100 S. Ct. at 2265.

23
¶39 In pertinent part, the Montana statutory double jeopardy protection similarly

prohibits multiple convictions in the same prosecution based on the same transaction if

“one offense is included in the other” and, as pertinent, similarly defines an “included

offense” as one “established by proof of the same or less than all the facts required to

establish the commission of the [other].” Sections 46-11-410(2)(a) and 46-1-202(9)(a),

MCA (multiple convictions based on same transaction prohibited if one offense is

“included in the other” and definition of “included offense”—formerly § 95-1711(1)(b)(i)

and (2)(a), RCM (1947) (1973), and §§ 46-11-501(2)(a), and -502(1), MCA (1978)). As

with the Blockburger test from which it derives, reference in § 46-1-202(9)(a), MCA

(“included offense” definition), to “the facts required to establish the commission of the

[other] offense” exclusively refers “to the statutory elements of the crime rather than to the

individual facts of each case.” State v. Ritchson, 193 Mont. 112, 115-16, 630 P.2d 234,

237 (1981) (citing Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, and Brown, 432 U.S. at

166, 97 S. Ct. at 2226). Accord State v. Wells, 202 Mont. 337, 351, 658 P.2d 381, 388

(1983) (citing Ritchson and Blockburger); Coleman, 185 Mont. at 310-13, 605 P.2d at

1008-10 (1979) (citing Blockburger and § 95-1711(1)(b) and (2)(a), RCM (1947) (1973),

now §§ 46-1-202(9) and 46-11-410(2)(a), MCA); State v. Perry, 180 Mont. 364, 367-68,

590 P.2d 1129, 1131 (1979) (applying §§ 46-11-501(2)(a) and -502, MCA, formerly

§ 95-1711(1)(b) and (2)(a), RCM (1947) (1973), and now §§ 46-1-202(9) and 46-11-

410(2)(a)). At a minimum, §§ 46-11-410(1), (2)(a), 46-1-202(9), and (23), MCA

(prohibition of multiple convictions based on same transaction if “one offense included in

the other” and definitions of “included offense” and “same transaction”), codify the

24
constitutional Blockburger same elements test. Wells, 202 Mont. at 350-51, 658 P.2d at

388 (citing Blockburger and § 46-11-502, MCA (1981), now § 46-11-410 – internal

Montana citations omitted); State v. Close, 191 Mont. 229, 247, 623 P.2d 940, 950 (1981)

(citing Blockburger test and § 46-11-502, MCA (1981), now § 46-11-410); Coleman, 185

Mont. at 310-13, 605 P.2d at 1008-10 (citing Blockburger and § 95-1711(1)(b) and (2)(a),

RCM (1947) (1973), now §§ 46-1-202(9) and 46-11-410(2)(a), MCA).

¶40 Here, as clearly stated in his November 2020 judgment of conviction and sentence,

Valenzuela was convicted and sentenced on particular statutory variants of the offenses of

sexual assault and incest—felony Sexual Assault in violation of § 45-5-502(3), MCA, and

felony Incest in violation of § 45-5-507(5), MCA—based on requisite factual proof that

he, “at approximately 28 years of age,” knowingly had sexual contact with his 6-8 year-old

biological son on a single occasion in or about a specified time period in 2011. Applying

the constitutional Blockburger same elements test, as codified in §§ 46-11-410(2)(a) and

46-1-202(9), MCA, the essential elements of proof of the subject sub-variants of the

offenses as defined by statute and at issue here are:

Sexual Assault (F) – Consent N/A4 Incest (F) w/ Descendant/SC– Consent N/A
(1) knowing sexual contact (1) knowing sexual contact

(2) with another person; and (2) with a descendant/stepchild; and

4
See § 45-5-502(1), MCA (generally defining sexual assault as “knowingly subject[ing] another
person to any sexual contact without consent”). Compare § 45-5-502(5)(a)(ii), MCA (“consent is
ineffective under this section if the victim is . . . less than 14 years old and the offender is 3 or
more years older”). See also § 45-5-507(2)(a), MCA (“[c]onsent is a defense to incest with or
upon a stepson or stepdaughter, but consent is ineffective if the stepson or stepdaughter is less than
18 years of age and the stepparent is 4 or more years older”).

25
 (3) victim less than age 16 – offender (3) victim age 12 or younger – offender age
3 or more years older. 18 or older.

See § 45-5-507(1), (2)-(3), and (5), MCA (incest against descendant/stepchild age 12 or

younger and offender age 18 or older); § 45-5-502(1), (3), and (5)(a)(ii), MCA (sexual

assault against a person less than age 16 and offender three or more years older); State v.

Resh, 2019 MT 220, ¶ 11, 397 Mont. 254, 448 P.3d 1100 (“without consent” element of

felony sexual assault “differs . . . when” victim is below age of consent); State v. Ghostbear,

2014 MT 192, ¶ 6, 376 Mont. 500, 338 P.3d 25 (definition of felony sexual assault requires

no proof of lack of consent when victim is below age of consent because “there can be no

consent as a matter of law”); State v. Ogle, 255 Mont. 246, 252, 841 P.2d 1133, 1136 (1992)

(“‘without consent’ is not an element of sexual assault where victim is less than 14 years

old” – internal citations omitted). Comparing the requisite legal elements of proof as

defined and at issue here, incest required proof of a more particular type of victim (i.e., a

descendant) not required for proof of felony sexual assault (i.e., merely “another person”).

See § 45-5-502(1), MCA; compare § 45-5-507(1), MCA. Incest further required proof of

a different age-differential between the victim and offender (victim age 12 or younger and

offender age 18 or older) than felony sexual assault (victim less than age 16 and offender

three or more years older). See § 45-5-502(3), MCA; compare § 45-5-507(5)(a), MCA.

Each of the particular sub-variants of the offenses at issue thus had at least one statutory

element of proof which the other did not. The charged sub-variants of the offenses were

therefore neither the same or included offenses as referenced in Blockburger and Brown,

nor one “included in the other” as referenced in §§ 46-11-410(2)(a) and 46-1-202(9), MCA.

26
I thus concur with the Court’s ultimate conclusion, if not its underlying analysis, that

Valenzuela’s sexual assault and incest convictions neither constitute double jeopardy as

prohibited by the United States and Montana constitutions, nor violate Montana’s similar

statutory double jeopardy prohibition under §§ 46-11-410(2)(a) and 46-1-202(9), MCA.

However, contrary to the Court’s prematurely truncated analysis, the Montana statutory

double jeopardy analysis does not end there.

F. Montana Statutory Double Jeopardy Protection Under § 46-11-410(1) and (2)(d),
MCA.

¶41 Beyond the minimum protection of the Blockburger “same elements” test, as

codified in §§ 46-11-410(2)(a) and 46-1-202(9), MCA, Montana’s greater statutory double

jeopardy protection in pertinent part prohibits multiple convictions in the same prosecution

that are based on the same underlying factual transaction if “the offenses differ only in that

one is defined to prohibit a specific instance of the conduct” generally prohibited by the

other. Section 46-11-410(1) and (2)(d), MCA. Like the constitutional Blockburger test

and similar test under § 46-11-410(2)(a), MCA, the question of whether § 46-11-410(2)(d),

MCA, prohibits multiple convictions based on the same transaction exclusively depends

on comparison of the statutory definitions, i.e., statutory elements, of the subject offenses

as a matter of law, not on the actual evidence presented in a particular case. See § 46-11-

410(2)(d), MCA (focusing on how the subject offenses are “defined”). We have thus

reached different results in our prior applications of § 46-11-410(2)(d), MCA (formerly

§ 46-11-502(4), MCA (1978), and § 95-1711(2)(d), RCM (1947) (1973)), depending on

27
which sub-variants of multi-variant offenses were at issue. See Hall, 224 Mont. at 190-93,

728 P.2d at 1340-42; compare Sor-Lokken, 247 Mont. at 351-52, 805 P.2d at 1373.

¶42 In Hall, the defendant was convicted at trial of felony incest, as defined by

§ 45-5-507, MCA (1983) (knowing sexual contact with stepdaughter less than age 18),5

based on the same single instance of sexual contact. Hall, 224 Mont. at 188-91, 728 P.2d

at 1339-41. We reversed the conviction on appeal, however, as a constitutional ex post

facto violation because the offense occurred in 1983 before the effective date of the 1983

amendment of the statutory definition of incest to include sexual contact with a stepchild.

Hall, 224 Mont. at 188-89 and 192, 728 P.2d at 1339-40 and 1342 (holding

newly-expanded definition of incest not retroactively applicable). We then considered

whether § 46-11-502(4), MCA (1981) (now § 46-11-410(2)(d), MCA), would prohibit the

State from re-prosecuting the defendant on remand for felony sexual assault as defined by

§ 45-5-502(1), (3), and (5), MCA (1981) (knowing sexual contact with victim less than age

14 and offender 3 or more years older).6 Hall, 224 Mont. at 190-92, 728 P.2d at 1340-42.

5
Upon its effective date in 1983, § 45-5-507(2), MCA (formerly § 45-5-613, MCA (1981),
amended and renumbered as § 45-5-507, MCA (1983)), provided that “[c]onsent is a defense . . .
to incest with or upon a step[child] . . . , but consent is ineffective if the victim is less than 18 years
old.” In 2007, the Legislature amended § 45-5-507, MCA, to include the enhanced felony penalty
in current subsection (5)(a) for incest with a victim under age 12 by an offender age 18 or older.
Section § 45-5-507(5)(a), MCA (2007 Mont. Laws ch. 483, § 6). In 2017, the Legislature further
amended § 45-5-507, MCA, to provide that “[a] person . . . less than 18 . . . is not legally responsible
or . . . accountable for” incest “and is considered a victim of . . . incest if the . . . [offender] is 4 or
more years older than the victim,” and accordingly clarified that consent is not a defense to incest
if the victim is under age 18 and the offender is 4 or more years older. Section 45-5-507(2), MCA
(2017 Mont Laws ch. 226, § 1).
6
See § 45-5-502(1) and (3)-(4), MCA (1981) (defining felony sexual assault as knowingly
subjecting a person less than age 16 to sexual contact without consent when offender three or more
years older and providing that consent is ineffective if the victim is less than age 14 and offender
28
Regardless of intermixed references in our analysis to the constitutional double jeopardy

prohibition, see Hall, 224 Mont. at 190, 728 P.2d at 1340-42, the dispositive issue was

whether the subject variants of incest (knowing sexual contact with a stepdaughter less than

age 18) and felony sexual assault (knowing sexual contact with a victim less than age 14

and offender three or more years older) “differ[ed] only in that one is defined to prohibit a

designated kind of conduct generally and the other to prohibit a specific instance of such

conduct” as referenced in § 46-11-502(4), MCA (now § 46-11-410(2)(d), MCA, as

amended). Hall, 224 Mont. at 190-92, 728 P.2d at 1341-42. As a threshold matter, we

noted that a “second prosecution . . . for sexual assault would be based upon the same

sexual contact with the same victim on the same dates as alleged in the incest charge,” as

referenced in § 46-11-501(1), MCA (“same transaction” definition). See Hall, 224 Mont.

at 191, 728 P.2d at 1341. Turning to the elements of the particular sub-variants of incest

and sexual assault at issue under § 46-11-502(4), MCA, we concluded that because the

victim was of an age at which consent was ineffective, the pertinent sub-variant of sexual

assault “require[d] no separate proof” of “without consent,” and thus held that

re-prosecution of the defendant for sexual assault on remand would violate § 46-11-502(4),

MCA, because, with lack of consent not at issue, “the statutory elements for both offenses

is three or more years older); Resh, ¶ 11 (“without consent” element of felony sexual assault
“differs . . . when” victim is below age of consent); Ghostbear, ¶ 6 (definition of felony sexual
assault requires no proof of lack of consent when victim is below age of consent because “there
can be no consent as a matter of law”); Ogle, 255 Mont. at 252, 841 P.2d at 1136 (“‘without
consent’ is not an element of sexual assault where victim is less than 14 years old” – citing State
v. Price, 191 Mont. 1, 622 P.2d 160 (1980), Sor-Lokken, and Hall).

29
are essentially the same” with the “only difference” being the nature of the relationship

between the accused and the victim. Hall, 224 Mont. at 190-92, 728 P.2d at 1340-42 (citing

Brown, 432 U.S. at 166 n.6, 97 S. Ct. at 2226).7

¶43 In contrast, in Sor-Lokken, we again considered whether the Montana statutory

double jeopardy protection provided by § 46-11-502(4), MCA (now § 46-11-410(2)(d),

MCA), barred multiple convictions for incest and sexual assault, this time based on the

same sexual contact with a 15-year-old stepdaughter, thus implicating a different

sub-variant of sexual assault. Sor-Lokken, 247 Mont. at 351-52, 805 P.2d at 1373. Unlike

7
While we did not indicate the perceived relationship or link between them, our summary analysis
clearly combined the independent statutory prohibition of § 46-11-502(4), MCA, with the
constitutional observation in Brown, 432 U.S. at 166 n.6, 97 S. Ct. at 2226 (citing Ashe, 397 U.S.
at 442-47, 90 S. Ct. at 1193-96 – emphasis added), that “[t]he Blockburger test is not the only
standard for determining whether successive prosecutions impermissibly involve the same
offense” – “[e]ven if two offenses are sufficiently different” to not constitute essentially the same
offense and thus “permit the imposition of consecutive sentences, successive prosecutions will be
barred in some circumstances where the second prosecution requires the relitigation of factual
issues already resolved by the first.” See Hall, 224 Mont. at 190-93, 728 P.2d at 1340-42. In such
cases, the Supreme Court has observed that strict application of a same elements test “would . . .
permit[] imposition of consecutive sentences had the charges been consolidated in a single
proceeding.” Brown, 432 U.S. at 166 n.6, 97 S. Ct. at 2226 (citing Ebeling). See also State v. Bad
Horse, 185 Mont. 507, 513-14, 605 P.2d 1113, 1117 (1980) (noting but finding inapplicable under
the circumstances at issue that the Supreme Court has recognized that “collateral estoppel is a part
of the Fifth Amendment’s guarantee against double jeopardy” and “that the inquiry as to whether
[Fifth Amendment] collateral estoppel applies ‘must be set in a practical frame and viewed with
an eye to all the circumstances of the proceedings’” – internal federal citations omitted). Note,
however, that the Fifth Amendment-incorporated concept of collateral estoppel by definition
applies only to relitigation of the same factual issues in a subsequent or collateral proceeding which
is never at issue in cases of multiple convictions based on the same transaction in the same
prosecution. Thus, contrary to the indiscriminate cursory assertion of the Majority here, Hall is at
least distinguishable, and at most erroneous, only to the extent that it conflated the Fifth
Amendment collateral estoppel concept with the greater Montana statutory double jeopardy
protection provided by § 46-11-502(4), MCA (now § 46-11-410(2)(d), MCA). In either event, the
conflated reference to constitutional double jeopardy in Hall does not alter or undermine its central
focus and decision point under the Montana statutory double jeopardy protection.

30
the sub-variant of sexual assault at issue in Hall (knowing sexual contact with a victim less

than 14 years old and offender three or more years older), Sor-Lokken involved the distinct

sub-variant of sexual assault requiring proof of knowing sexual contact without consent

because the victim at issue was not below the age of consent. Sor-Lokken, 247 Mont. at

352, 805 P.2d at 1373. Distinguishing Hall, we noted that, unlike in Hall, the charged

sub-variant of felony sexual assault at issue in Sor-Lokken required proof of “lack of

consent,” a statutory element not included in the charged sub-variant of incest (knowing

sexual contact with a stepdaughter less than age 18). Sor-Lokken, 247 Mont. at 352, 805

P.2d at 1373. We thus found no violation of § 46-11-502(4), MCA, because, unlike in

Hall, the difference in statutorily-required proof between the particular sub-variants of

incest and sexual assault at issue was more than that one merely required proof of a specific

type of conduct or circumstances generally prohibited by the other. Sor-Lokken, 247 Mont.

at 352, 805 P.2d at 1373.8

¶44 Here, without analysis, the Majority cursorily derides and dismisses our prior

holding in Hall as “incorrect” and “inconsistent with our precedent.” Opinion, ¶ 25 (citing

State v. Matt, 2005 MT 9, ¶¶ 11-15, 325 Mont. 340, 106 P.3d 530; Hall; Sor-Lokken;

McQuiston; State v. Weatherell, 2010 MT 37, ¶ 12, 355 Mont. 230, 22 P.3d 1256; State v.

8
In 1991, buried in a broader Act that generally revised the “laws relating to criminal procedure,”
the Legislature amended and renumbered § 46-11-504(4), MCA, without substantive change or
effect into its current form prohibiting multiple prosecutions based on the same transaction if “the
offenses differ only in that one is defined to prohibit a specific instance of the conduct.” Section
46-11-502(2)(d), MCA (1991 Mont. Laws ch. 800, § 121 – SB 51 – renumbered by Code
Commissioner as § 46-11-410(2)(d), MCA).

31
Hooper, 2016 MT 237, ¶ 11, 385 Mont. 14, 386 P.3d 548; and State v. Brandt, 2020 MT

79, ¶ 18, 399 Mont. 415, 460 P.3d 427). As a critical threshold matter, however, the Court’s

“single standard” proposition first ignores the clear and unambiguous language of § 46-11-

410(2)(a) and (d), MCA, which disjunctively puts forth two distinctly different double

jeopardy protections, using distinctly different language, that have distinctly different

meaning. See §§ 46-1-202(9) and 46-11-410(2)(a), MCA (defining an “included offense”

and barring multiple convictions based on same transaction “if one offense is included in

the other”); compare § 46-11-410(2)(d), MCA (distinctly pertaining to “offenses [that]

differ only in that one is defined to prohibit a specific instance of the conduct” generally

prohibited by the other). Sections 46-1-202(9) and 46-11-410(2)(a), MCA, manifestly

relate to each other and encompass the Montana-codified Blockburger same or included

elements test. But based on its distinct language, § 46-11-410(2)(d), MCA, sets forth an

entirely different statutory double jeopardy test. The Court’s analysis simply ignores the

fundamental tenet that we must construe statutes in context as a whole, with harmonious

effect to all distinct statutory “provisions or particulars.” Section

1-2-101, MCA; State v. Mathis, 2003 MT 112, ¶ 27, 315 Mont. 378, 68 P.3d 756. The

Court provides no justification or explanation for its conflation or merger of these distinct

statutory provisions into a “single standard.” Without analysis, the Court merely provides

cursory citation to a number of cases (i.e., Matt, Hall, Sor-Lokken, McQuiston, Weatherell,

Hooper, and Brandt)—none of which support its “single standard” proposition on close

examination.

32
¶45 In Matt, the pertinent issue was whether the offense of assault with a weapon, as

defined by § 45-5-213(1)(a), MCA (causation of “bodily injury” to “another” “with a

weapon”—mental state omitted), was an “included offense” of assault on a peace officer,

as defined by § 45-5-210(1)(a), MCA (causation of “bodily injury” to a “peace officer”—

mental state omitted). Matt, ¶¶ 11-15. Because each of those offenses included an element

of proof not included in the other (i.e., use of a “weapon” for assault with a weapon and

injury to a “peace officer” in assault on a peace officer), we held that assault with a weapon

was not a lesser-included offense of assault on a peace officer. Matt, ¶ 15. Contrary to the

Court’s assertion here, we decided Matt solely on the basis of the Blockburger same or

included elements test as codified in §§ 46-1-202(9) and 46-11-410(2)(a), MCA. See Matt,

¶¶ 12-15. Conspicuously absent from Matt is any direct or indirect reference to, much less

application of, the distinct more specific instance of conduct test specified in § 46-11-

410(2)(d), MCA. See Matt, ¶¶ 12-15.

¶46 In contrast, as analyzed supra, we decided Hall in pertinent part based on the distinct

specific instance of conduct test specified in § 46-11-410(2)(d), MCA (formerly § 46-11-

502(4), MCA). Hall, 224 Mont. at 190-92, 728 P.2d at 1341-42. Despite our procedural

circumstance-specific co-application of the § 46-11-410(2)(d) test with the Fifth

Amendment collateral estoppel protection beyond the Blockburger test,9 we did not decide

9
Despite its correct statutory analysis on the independent state law ground of § 46-11-410(2)(d),
MCA (formerly § 46-11-502(4), MCA (1978), and § 95-1711(2)(d), RCM (1947) (1973)), Hall
combined the more protective Montana statutory double jeopardy protection under § 46-11-
410(2)(d), MCA, with the Fifth Amendment double jeopardy collateral estoppel principle
discussed in Brown beyond the Blockburger same elements/offense test. See Hall, 224 Mont. at
190-93, 728 P.2d at 1340-42 (citing Brown, 432 U.S. at 166 n.6, 97 S. Ct. at 2226 (citing Ashe and
33
Hall based on application of the Blockburger same or included elements test then codified

in §§ 46-11-502(1) and -501(2), MCA (now §§ 46-11-410(2)(a) and 46-1-202(9)(a),

MCA). Hall, 224 Mont. at 190-92, 728 P.2d at 1340-42. Satisfaction of the

Blockburger/§ 46-11-410(2)(a) test (i.e., that each offense have an element of proof the

other does not) was not at issue in Hall, obviously because the subject sub-variants of

felony sexual assault and incest each had an element of proof the other did not—victim a

person less than age 14 and offender three or more years older for felony sexual assault

and victim a stepdaughter less than age 18 for incest. See Hall, 224 Mont. at 191-92, 728

P.2d at 1341-42. Rather, the pertinent focus of Hall was on the more specific instance of

conduct test specified by § 46-11-410(2)(d), MCA, under which we essentially held that

the subject offenses failed the more stringent § 46-11-410(2)(d) test because those distinct

elements of each offense differed only in that one prohibited sexual contact with a victim

of a more particular type/age-differential (incest) than prohibited by the other (felony

sexual assault). See Hall, 224 Mont. at 191-92, 728 P.2d at 1341-42.

¶47 In Sor-Lokken, the analytical bookend to Hall in pertinent part, we again applied the

specific instance of conduct test specified in § 46-11-410(2)(d), MCA (formerly § 46-11-

502(4), MCA), but reached a different result based on a different sub-variant of sexual

assault that, unlike the sub-variant at issue in Hall, required proof of lack of victim consent

Nielsen)). As later held by the Supreme Court, however, Hall was erroneous to the extent based
on the Fifth Amendment. See Montana v. Hall, 481 U.S. 400, 402-05, 107 S. Ct. 1825, 1826-27
(1987) (per curiam – reversing Hall to extent based on asserted Fifth Amendment double jeopardy
violation).

34
to the subject sexual contact. Sor-Lokken, 247 Mont. at 351-52, 805 P.2d at 1373. Upon

close examination, Hall, in pertinent part, and Sor-Lokken were both correctly decided

based solely on consideration of the more specific instance of conduct test specified in

§ 46-11-410(2)(d), MCA—not the Blockburger same or included elements test codified in

§§ 46-11-410(2)(a) and 46-1-202(9)(a), MCA. Together, Hall and Sor-Lokken manifest

the narrow focus and application of the more stringent specific instance of conduct test

specified by § 46-11-410(2)(d), MCA, on and to the distinct elements of each offense, not

common to the other, and whether those distinct elements, which caused the offenses to

pass the less stringent Blockburger/“included offense” test, nonetheless caused the offenses

to differ only in that the distinct elements of one merely required proof of a specific type

of conduct, circumstance, or victim generally specified by the distinct element(s) of the

other. Thus, neither Hall nor Sor-Lokken support the Court’s assertion here that §§ 46-1-

202(9) and 46-11-410(2)(a), MCA (Blockburger test) and § 46-11-410(2)(d), MCA (more

specific instance of conduct test) impose a “single standard” of prohibited double jeopardy.

¶48 In McQuiston, the pertinent issues were whether concurrent convictions on the

subject variants of the offenses of incest and sexual intercourse without consent (SIWC)

violated: (1) the Blockburger same or included elements test; (2) § 46-11-410(2)(a), MCA

(Montana-codified Blockburger test), as asserted by the defendant to provide greater

protection than the Blockburger test; and/or (3) § 46-11-410(2)(d), MCA (more specific

instance of conduct test). McQuiston, 277 Mont. at 404-07, 922 P.2d at 524-25. As a

threshold matter, we rejected “McQuiston’s interpretation” that § 46-11-410(2)(a), MCA,

provides greater protection than the Blockburger test which it codifies. See McQuiston,

35
277 Mont. at 405-06, 922 P.2d at 525. Turning to the statutory elements of the offenses,

SIWC required proof of knowing sexual intercourse with “another person” and “without

consent,” while incest merely required proof of knowing sexual intercourse with “a

descendant.” McQuiston, 277 Mont. at 405-06, 922 P.2d at 524-25. See also § 45-5-

503(1), MCA (1987); compare § 45-5-507(1), MCA (1987). We thus held that the subject

variant of incest (sexual intercourse with a descendant—mental state omitted) was not an

“included offense” of SIWC (sexual intercourse with another without consent—mental

state omitted) under the Blockburger/§ 46-11-410(2)(a) test because each “requires proof

of distinct elements that the other does not.” McQuiston, 277 Mont. at 406-07, 922 P.2d

at 525. While we did not clearly explain the precise basis upon which the subject offenses

passed each test, we similarly rejected the defendant’s separate assertion that the subject

variant of incest merely prohibited a “‘specific instance’ of the conduct proscribed by”

SIWC for purposes of the separate double jeopardy protection provided by

§ 46-11-410(2)(d), MCA. McQuiston, 277 Mont. at 406-07, 922 P.2d at 525. However,

contrary to the Court’s assertion here, we did not expressly or implicitly hold that

satisfaction of the Blockburger same or included elements test codified in §§ 46-11-

410(2)(a) and 46-1-202(9), MCA, necessarily satisfied the more specific instance of

conduct test specified by § 46-11-410(2)(d), MCA. See McQuiston, 277 Mont. at 406-07,

922 P.2d at 525. The reason the subject offenses distinctly satisfied the separate § 46-11-

410(2)(d) test was not merely that they satisfied the Blockburger/§ 46-11-410(2)(a) test

(requiring only that each have an element of proof the other did not), but that SIWC had

two elements of proof not required by the subject variant of incest (i.e., proof of “without

36
consent” and any person as the victim regardless of whether a descendent). See §§ 45-5-

503(1) and -507(1), MCA (1987); McQuiston, 277 Mont. at 404-06, 922 P.2d at 524-25.

Unlike the offenses at issue in Hall, the offenses in McQuiston did not, as referenced in

§ 46-11-410(2)(d), MCA (emphasis added), “differ only in that [incest] is defined to

prohibit a specific instance of the conduct” generally prohibited by SIWC. See §§ 45-5-

503(1) and -507(1), MCA (1987); McQuiston, 277 Mont. at 404-06, 922 P.2d at 524-25.

Thus, McQuiston does not support the Court’s assertion here that §§ 46-1-202(9) and

46-11-410(2)(a), MCA, and § 46-11-410(2)(d), MCA, impose a “single standard” of

prohibited double jeopardy.

¶49 Unfortunately, the Court’s erroneous conflation of § 46-11-410(2)(a) and (d), MCA,

stems from a similar undiscerning conflation in State v. Weatherell, 2010 MT 37, 355

Mont. 230, 225 P.3d 1256. In Weatherell, the sole pertinent issue was whether concurrent

convictions for partner/family member assault (PFMA), as defined by § 45-5-206(1)(a),

MCA (purposeful/knowing causation of bodily injury to a partner/family member), and

assault on a minor, as defined by § 45-5-212(1), MCA (purposeful/knowing causation of

bodily injury to a statutorily-defined minor), violated § 46-11-410(2)(d), MCA (more

specific instance of conduct test). See Weatherell, ¶¶ 11-13. Without analysis reconciling

the distinct statutory language of § 46-11-410(2)(a) and (d), MCA, we broadly stated for

the first time that Matt, Hall, Sor-Lokken, and McQuiston “employed a single standard”—

the “included offense” test codified in § 46-1-202(9)(a), MCA (Montana-codified

Blockburger test)—for determining whether concurrent convictions based on the same

transaction violate both § 46-11-410(2)(a) and (d), MCA. Weatherell, ¶ 12. Because the

37
subject offenses each had an element of proof the other did not (i.e., victim a

statutorily-defined minor for assault on a minor and victim a partner/family member for

PFMA), we held that the concurrent convictions did not violate the double jeopardy

protection provided by “§ 46-11-410(2)(a), (d), MCA.” Weatherell, ¶ 13.

¶50 As a preliminary matter, we correctly concluded in Weatherell that PFMA and

assault on a minor passed the Blockburger/§ 46-11-410(2)(a) same or included elements

test because each had an element of proof the other did not. We also correctly concluded

that those offenses also passed the separate -410(2)(d) more specific instance of conduct

test, not because they passed the Blockburger test as stated there, but because a

statutorily-defined minor is not necessarily in every case a statutorily-defined

partner/family member, or vice-versa. Thus, the elements distinct to each of those offenses

differed by more than that one specified a more specific type of victim than the other as in

Hall. However, like the Court’s similar assertion here, our assertion in Weatherell that

§ 46-11-410(2)(a) and (d), MCA, impose a “single standard” of prohibited double

jeopardy—the Blockburger/§ 46-1-202(9) “included offense” test—was clearly erroneous

because it failed to reconcile the distinct disjunctive language of § 46-11-410(2)(a) and (d),

MCA, and was based on cited underpinnings (i.e., Matt, McQuiston, Hall, and Sor-Lokken)

that on close examination do not support that proposition. Though ultimately correctly

decided at the bottom-line, Weatherell should be clarified as to its erroneous preliminary

statement of law, but, in any event, does not support the Court’s assertion here that §§ 46-

1-202(9) and 46-11-410(2)(a), MCA, and § 46-11-410(2)(d), MCA, impose a “single

standard” of prohibited double jeopardy.

38
¶51 Hooper and Brandt are similarly problematic in pertinent part because they merely

cite and perpetuate our erroneous statement in Weatherell. In Hooper, in the context of an

asserted ineffective assistance of counsel claim, we considered whether concurrent

convictions for aggravated burglary and elder abuse violated the double jeopardy

protection of § 46-11-410(2)(d), MCA (more specific instance of conduct test). Hooper,

¶¶ 7-10. The distinct question of whether those convictions violated §§ 46-11-410(2)(a)

and 46-1-202(9), MCA (Montana-codified Blockburger same or included elements test)

was not at issue. Hooper, ¶¶ 7-10. Nonetheless, as in Weatherell, we erroneously

introduced the Blockburger/“included offense” test into the distinct § 46-11-410(2)(d)

more specific instance of conduct test analysis. Hooper, ¶ 11 (citing Weatherell, ¶ 12).

Then, applying the Blockburger/“included offense” test to the elements of aggravated

burglary (knowingly enter or remain unlawfully in an occupied structure, with purpose to

commit an offense therein, and inflicting or attempting to inflict bodily injury on anyone

in the course of effecting the entry, committing the offense, or immediate flight thereafter)

and the subject variant of elder abuse (knowing infliction of mental/physical injury on

person age 60 or older), we recognized that each offense had one or more elements of proof

that the other did not and thus held “elder abuse is not a specific instance of aggravated

burglary” for purposes of § 46-11-410(2)(d), MCA. Hooper, ¶¶ 12-16 (citing Weatherell,

Matt, and McQuiston).

¶52 As in Weatherell, Hooper was ultimately correctly decided because aggravated

burglary and the subject variant of elder abuse passed the Blockburger/“included elements”

test codified in §§ 46-1-202(9)(a) and 46-11-410(2)(a) MCA, because each had one or

39
more elements of proof the other did not. They also satisfied the separate more specific

instance of conduct test specified in § 46-11-410(2)(d), MCA, not because they satisfied

the Blockburger/“included offense” test, but because, unlike in Hall where the distinct

elements of each offense that satisfied the Blockburger/“included offense” test differed

only as to the nature or type of victim, aggravated burglary had multiple distinct elements

the elder abuse variant in Hooper did not, and its distinct elements differed from the distinct

element of the elder abuse variant (elderly victim) by more than that elder abuse merely

specified a more specific type of conduct, circumstance, or victim. Thus, other than our

citation to and perpetuation of our prior erroneous statement in Weatherell, Hooper does

not support the similarly erroneous proposition here that §§ 46-1-202(9)(a) and 46-11-

410(2)(a), MCA, and § 46-11-410(2)(d), MCA, impose a “single standard” of prohibited

double jeopardy.

¶53 In Brandt, again in the context of an asserted ineffective assistance of counsel claim,

we considered whether concurrent convictions on five additional offenses based on the

same underlying factual transaction violated the Blockburger/same or “included offense”

test codified in §§ 46-1-202(9)(a) and 46-11-410(2)(a), MCA, and/or the more specific

instance of conduct test specified in § 46-11-410(2)(d), MCA, either as included offenses,

or mere prohibitions of more specific instances the conduct generally prohibited under the

definition of common scheme fraudulent practices. Brandt, ¶¶ 9, 11-12, and 19-21. As

pertinent, the essential elements of the subject offenses were:

(1) common scheme fraudulent practices as defined by § 30-10-301(1), MCA—
purposeful/knowing fraudulent or deceitful conduct (by embezzlement,

40
 incomplete disclosure, nondisclosure, or material misstatement of fact), in
connection with the offer or sale of a security, as part of common scheme;

(2) common scheme elder exploitation as defined by § 52-3-825(3), MCA—
purposeful/knowing use of deception or fraud, with intent to permanently
deprive, a person age 60 or older, of his or her money, property, or assets, as
part of a common scheme;

(3) common scheme theft by embezzlement as defined by § 45-6-301(6) and (8),
MCA—purposeful/knowing exertion of unauthorized physical control or
control obtained by deception, with purpose to deprive, over property of the
person’s employer or entrusted to the person, as part of a common scheme;

(4) failure to register as a securities salesperson as defined by § 30-10-201(1),
MCA—willful transaction of securities business as a salesperson, by a person
not registered to transact securities business as a salesperson, as part of a
common scheme;

(5) common scheme unregistered sale of a security as defined by § 30-10-202,
MCA—willful offer or sale of an unregistered security, as part of a common
scheme; and

(6) common scheme operation of a Ponzi scheme as defined by §§ 30-10-
324(7)(b) and -325, MCA—purposeful/knowing funneling of proceeds
received from new investors to prior investors, under the guise of profit from
the subject business venture, thereby cultivating the illusion of an
opportunity for legitimate business profit, thereby inducing further
investment, without sufficient assets to pay the promised returns, thereby
guaranteeing the ultimate demise of the scheme, as part of a common scheme.

Brandt, ¶¶ 12 and 20-27.

¶54 As in Hooper, we began by citing our erroneous statement in Weatherell that the

Blockburger/“included offense” test codified in §§ 46-1-202(9)(a) and 46-11-410(2)(a),

MCA, is the same standard of double jeopardy applicable under both § 46-11-410(2)(a)

and (d), MCA. Brandt, ¶ 18 (citing Weatherell, ¶ 12, and Hooper, ¶ 11). Upon application

of the Blockburger/“included offense” test to the subject offenses, we then concluded that,

except for theft by common scheme, none of the other five offenses violated either of the

41
double jeopardy protections provided by § 46-11-410(2)(a) and (d), MCA, in relation to

common scheme fraudulent practices. Brandt, ¶¶ 18-28. As in Weatherell and Hooper,

we correctly recognized that, except for common scheme theft by embezzlement, none of

the other five offenses were included in common scheme deceptive practices for purposes

of the Blockburger/“included offense” test because each had one or more elements of proof

not included in deceptive practices and vice-versa. See Brandt, ¶¶ 20-28. Moreover, as in

Weatherell and Hooper, we also ultimately correctly concluded, with one exception, that

they also separately passed the more specific instance of conduct test under § 46-11-

410(2)(d), MCA, not just because they passed the Blockburger/“included offense” test, but

because, unlike in Hall, in each case at least one of the two offenses had multiple distinct

elements the other did not, and the offenses differed by more than that the distinct

element(s) of the other specified a more specific type of conduct, circumstance, or victim

than specified by a distinct element of the former. See Hooper, ¶¶ 20-28. As with our

similarly erroneous preliminary statements of law in Weatherell and Hooper, we should

clarify our most recent erroneous preliminary statement of law in Brandt, but Brandt in

any event does not support the similarly erroneous proposition here that §§ 46-1-202(9)(a)

and 46-11-410(2)(a), MCA, and § 46-11-410(2)(d), MCA, impose a “single standard” of

prohibited double jeopardy.

¶55 Here, based on the same single instance of sexual contact with the victim, and as

clearly referenced in his post-trial judgment of conviction, Valenzuela was concurrently

convicted of the particular sub-variant of incest requiring proof of knowing sexual contact

with a descendant age 12 or younger and offender age 18 or older, and the particular

42
sub-variant of felony sexual assault requiring proof of knowing sexual contact with a victim

less than age 14 and offender three or more years older. See § 45-5-507(1), (2)-(3), and

(5), MCA (incest as charged and convicted here); compare § 45-5-502(1), (3), and

(5)(a)(ii), MCA (felony sexual assault as charged and convicted here). As a matter of law,

the only difference in statutorily-required proof between these particular sub-variants of

incest and felony sexual assault is the nature of the relationship and age-differential

between the victim and offender. As in Hall and unlike in Sor-Lokken, neither required

the State to prove lack of victim consent—each merely required proof of a distinct

relationship and age-differential between the victim and offender. As in Hall and unlike

in Sor-Lokken, the statutorily-required relationship and age-differential between the victim

and offender for the subject sub-variant of incest at issue here (descendant age 12 or

younger and offender age 18 or older) is merely a more specific element of proof (i.e.,

factual circumstance) than the statutorily-required relationship and age-differential

between the victim and offender required for the subject sub-variant of sexual assault

(“another person” less than age 14 and offender three or more years older). Consequently,

regardless of satisfaction of the constitutional Blockburger same elements test, as codified

in §§ 46-11-410(2)(a) and 46-1-202(9), MCA, Valenzuela’s incest and sexual assault

convictions violate the greater Montana statutory double jeopardy protection provided by

§ 46-11-410(2)(d), MCA, because, as in Hall, the distinct elements of those offenses that

cause them to pass the same or included elements test under §§ 46-11-410(2)(a) and 46-1-

202(9), MCA, as charged and convicted on in this case—victim less than age 16/offender

three or more years older for sexual assault and descendant 12 or younger/offender 18 or

43
older for incest—nonetheless cause them to fail the separate test of § 46-11-410(2)(d),

MCA, because the distinct elements of those offenses differ only in that incest more

specifically pertains to sexual contact with a victim of a more specific type and age

differential than sexual assault.10

¶56 In sum, here, the Court erroneously disregards § 46-11-410(2)(d), MCA, leading to

a similarly erroneous mischaracterization and unnecessary overruling of our correct

statutory analysis in Hall. Its analysis critically depends on our manifestly erroneous

statement in Weatherell, as perpetuated in Hooper and Brandt, conflating the Blockburger

same or included elements test codified in §§ 46-1-202(9)(a) and 46-11-410(2)(a), MCA,

with the expressly different test specified in § 46-11-410(2)(d), MCA. I cannot be a party

to, merely for the sake of “our precedent,” further perpetuation of the erroneous

mischaracterization of our undiscerning analysis of § 46-11-410(2)(a) and (d), MCA, in

our pre-Weatherell cases, or our resulting erroneous statement of law in Weatherell,

Hooper, and Brandt. Therefore, regardless of its unique procedural circumstance-specific

co-application of § 46-11-410(2)(d), MCA (formerly § 46-11-502(4), MCA), with the Fifth

Amendment collateral estoppel protection beyond the Blockburger test, I would reaffirm

Hall as a correct interpretation and application of § 46-11-410(2)(d), MCA (formerly

§ 46-11-502(4), MCA), based on the particular sub-variants of incest and felony sexual

assault at issue there. I would then reverse Valenzuela’s sexual assault conviction based

10
Contrary to the Court’s assertions here, this analysis of the statutory elements of the subject
offenses is hardly “a factual approach . . . [as] specifically rejected in Ritchson.”

44
on violation of § 46-11-410(2)(d), MCA, as applied to the particular sub-variants of incest

and sexual assault distinctly at issue here. I dissent.

/S/ DIRK M. SANDEFUR

Justice Ingrid Gustafson join in the dissenting Opinion of Justice Sandefur.

/S/ INGRID GUSTAFSON

45