State v. K. Tipton

11/02/2021

DA 20-0040 Case Number: DA 20-0040

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 281

STATE OF MONTANA,

Plaintiff and Appellee,

v.

KENNETH RAYMOND TIPTON,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Meagher, Cause No. DC-18-08
Honorable Randal I. Spaulding, Presiding Judge

COUNSEL OF RECORD:

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

Submitted on Briefs: September 29, 2021

Decided: November 2, 2021

Filed:
c .,.--.
6-- 4f
__________________________________________
Clerk
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.

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 (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, § 45-5-505(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.

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 (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 45-5-503(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.

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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

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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

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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 his IAC claim is reviewable on direct appeal because it is a result of

his counsel’s failure to object to an ex post facto application of the Montana Criminal Code.

Article I, Section 10, of the United States Constitution and Article II, Section 31, of the

Montana Constitution prohibit ex post facto application of laws. State v. Leistiko,

256 Mont. 32, 36, 844 P.2d 97, 99 (1992). We apply a two-part test to determine whether

an application of a statute violates the prohibition of ex post facto laws. Leistiko, 256 Mont.

at 36-37, 844 P.2d at 100. First, the law must be retrospective, and second, it must

disadvantage the offender affected by it. Leistiko, 256 Mont. at 36-37, 844 P.2d at 100

(citing Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451 (1987)). “[I]n criminal

cases, the law in effect at the time of the alleged offense applies in any subsequent criminal

prosecution.” City of Missoula v. Zerbst, 2020 MT 108, ¶ 12, 400 Mont. 46, 462 P.3d 1219.

¶15 Count I charged Tipton with a crime—Indecent Exposure to Minors—that was not

in effect during the alleged July 2015 incident and was therefore applied retrospectively.

The post-October 2015 version of § 45-5-504, MCA, imposes a penalty ten times more

severe than the law in effect during the 2015 incident. Although this count also charged

conduct that occurred after the law was in effect, the events were grouped into Count I and

the jury was instructed to consider any and all of the conduct against V.B. in order to

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convict Tipton of Count I. The retrospective application of the statute was an ex post facto

application of § 45-5-504, MCA.

¶16 The State concedes that the 2015 incident cannot form the basis of Tipton’s

conviction on Count I. But the State argues that there is a reasonable justification for

Tipton’s counsel’s failure to object to the ex post facto charge brought against him and

therefore Tipton’s claim of record-based IAC must fail. To the extent Count I pertained to

the 2015 incident, the State prosecuted Tipton for conduct that under the correct statute

could result in a ten-year maximum sentence, but as charged, subjected him to a maximum

sentence of 100 years. There is no plausible justification for an attorney to allow the

ex post facto application of a sentence that places his client in jeopardy of a sentence that

is ten times the length of the sentence to which he would otherwise be subjected. Tipton’s

IAC claim is appropriate for consideration on direct appeal.

¶17 To prevail on an IAC claim, a petitioner must show both that counsel’s performance

was deficient, and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Rose v. State, 2013 MT 161,

¶ 15, 370 Mont. 398, 304 P.3d 387. This Court applies a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance” contemplated by

the Sixth Amendment. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To show prejudice,

the defendant must show that there is a reasonable probability the verdict would have been

different but for counsel’s deficient performance. Kougl, ¶ 25.

¶18 There being no plausible justification for defense counsel’s failure to object to the

State adding Tipton’s alleged 2015 conduct to the Amended Information, it naturally
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follows that defense counsel’s conduct falls outside the bounds of reasonable professional

assistance. The minimum standard of care demands that trial counsel “evaluate the statute

under which [their] client was charged and advise [] accordingly.” State v. Becker,

2005 MT 75, ¶ 19, 326 Mont. 364, 110 P.3d 1. Tipton’s counsel failed to recognize that,

as to the 2015 allegation, Tipton was being prosecuted under a statute that did not apply

and carried a substantially more severe penalty.

¶19 As to the second Strickland prong, trial counsel’s failure to object to the statute

under which Tipton was prosecuted resulted in prejudice. Prejudice is shown by

“a probability sufficient to undermine confidence in the outcome” but need not establish

the defendant would have been acquitted. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

Kougl, ¶ 25. Tipton argues that this case is similar to State v. Price, where the defendant

was convicted of a felony when a portion of the conduct charged was during a time when

the punishment was only a misdemeanor. State v. Price, 2002 MT 284, 312 Mont. 458,

59 P.3d 1122. The jury was instructed to consider the entire time period when determining

guilt, and this Court found that the jury could have convicted the defendant of a felony for

the conduct subject only to a misdemeanor. Price, ¶ 28. Similarly, Tipton argues that there

is a reasonable probability that the outcome of his conviction on Count I could have been

different—Tipton may have been acquitted of the 2016 incidents subject to the more severe

penalty and found guilty of the 2015 incident that was only subject to a maximum sentence

of ten years.

¶20 The State argues that Tipton suffered no prejudice because there was sufficient

evidence presented to the jury regarding the 2016 incident. But the record reflects that the
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2016 incident occurred in a home with an open floor plan, with the dining room looking

directly into the living room, where there were other adults mere feet away at the time of

the alleged conduct. The other adults present during the 2016 incident testified they did

not see anything that corroborated V.B.’s allegation. Moreover, the State spent much of

the six days of trial establishing the events surrounding the July 2015 incident with nearly

every lay witness describing the campground and surrounding circumstances. The jury

was instructed that either the 2015 or 2016 incidents were sufficient to find Tipton guilty

of Count I, and the verdict form does not indicate whether the jury convicted Tipton of the

2015 incident, the 2016 incident, or both. In its closing, the State argued to the jury that if

it found that Tipton committed only one of the acts that formed the basis for Count I,

“then it’s still guilty.” The State “encouraged the jury to consider the very evidence that it

now contends could not have contributed to the jury’s verdict.” Price, ¶ 29. Since there is

no practical or possible way for this Court to ascertain which incident led to Tipton’s

conviction for Count I, “it is impossible to determine the period of time” upon which

Tipton’s conviction is based. Price, ¶ 30. Trial counsel’s error prejudiced Tipton’s defense.

¶21 Tipton argues that because he could have been convicted only based on the 2015

incident, the Court should remand for resentencing on that basis. But just as we cannot

know whether the jury convicted Tipton on Count I based only on the 2016 incident, we

likewise cannot know whether the jury convicted Tipton based only on the 2015 incident.

We reject Tipton’s argument that this case should be remanded for resentencing.

¶22 Tipton’s counsel provided record-based ineffective assistance that requires reversal

and remand for a new trial.
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 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.

¶23 The parties agree that Count II and Count III were the result of an ex post facto

application of the law because the October 2017 amendment of § 45-5-625(1)(c), MCA,

was applied to pre-October 2017 conduct. The parties disagree as to the remedy. Tipton

argues that because he was incorrectly charged, there was insufficient evidence to support

the convictions of the particular crime, Sexual Abuse of Children, that became effective

after the alleged conduct. The State urges the Court to apply the procedural remedy

established in Montana v. Hall, 481 U.S. 400, 107 S. Ct. 1825 (1987), that when a

conviction rests on a defective charging document, the conviction can be vacated and

remanded for a new trial. Hall, 481 U.S. at 404, 107 S. Ct. at 1827 (citing United States v.

Ball, 163 U.S. 662, 672, 16 S. Ct. 1192, 1195 (1896)).

¶24 When a defendant’s conviction is set aside “because of some error in the

proceedings leading to conviction,” remanding for a new trial may be “necessary in order

to ensure the ‘sound administration of justice.’” Lockhart v. Nelson, 488 U.S. 33, 38,

109 S. Ct. 285, 289 (citing Ball, 163 U.S. at 672, 16 S. Ct. at 1195; United States v. Tateo,

377 U.S. 463, 466, 84 S. Ct. 1587, 1589 (1964)). Allowing a defendant to obtain an

acquittal for charges based on a collateral attack, such as defective charging documents,

would be “a high price indeed for society to pay” and would defeat the “societal interest in

punishing one whose guilt is clear.” Lockhart, 488 U.S. at 38, 109 S. Ct. at 289 (quoting

Tateo, 377 U.S. at 466, 84 S. Ct. at 1589). Remand for a new trial serves defendants’

interests as well, for “it is at least doubtful that appellate courts would be as zealous as they

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now are in protecting against the effects of improprieties at the trial or pretrial stage if they

knew that reversal of a conviction would put the accused irrevocably beyond the reach of

further prosecution.” Tateo, 377 U.S. at 466, 84 S. Ct. at 1589.

¶25 Insufficiency of the evidence is not the proper inquiry when the success of the appeal

is due to defective charging documents. Acquittal may be the appropriate remedy when,

under properly charged offenses, a conviction results based on insufficient evidence.

Tipton does not contend there was insufficient evidence to convict him of the charges based

on the statute as amended in 2017. The reason why Tipton’s convictions for Count II and

Count III cannot be affirmed is because defective charging documents resulted in an

ex post facto application of law prohibited by the United States and Montana Constitutions.

As in Hall, the State “simply relied on the wrong statute.” Remand for a new trial is the

appropriate remedy. Hall, 481 U.S. at 404, 107 S. Ct. at 1827.

CONCLUSION

¶26 Tipton’s convictions as to Count I, Count II, and Count III are reversed. This matter

is remanded to the District Court for further proceedings consistent with this Opinion.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE

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