No. 8 6 - 0 2 3
IhT THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FRANKIaIN T. HALL SR. 1
Defendant and Appellant.
APPEAL, FF.OM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Stephen C. Moses, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer, Asst. Atty. General, Helena
Harold Hanser, County Attorney, Billings, Montana
Curtis Revolden, Deputy County Attorney, Billings
Submitted on Briefs: June 2 3 , 1986
Decided: December 2 , 1986
Filed: DECZ-1986:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Hall appeals from a jury conviction of incest in the
Thirteenth Judicial District Court, Yellowstone County. On
December 1 7 , 1985, Hall was sentenced to ten years imprison-
ment with five years suspended.
We reverse with instructions to dismiss the action.
Hall raises two issues for our review:
1. Does retroactive application of the incest statute
void the conviction?
2. Does double jeopardy bar Hall's retrial on a charge
of sexual assault?
On November 1 6 , 1 9 8 4 , the State filed an information in
Yellowstone County District Court charging Franklin T. Hall
with felony sexual assault on July 3 , 1983. The date of the
cha.rged offense was later amended to July 2, 1 9 8 3 .
On October 3 1 , 1985, Hall moved to dismiss the State's
information. Hall argued that the victim was Hall's
twelve-year-old stepdaughter, and therefore the proper charge
should be incest, which carried a lesser penalty and differ-
ent elements of proof. The District Court agreed and dis-
missed the State's information. The State then filed a new
information charging a violation of F 4 5 - 5 - 5 0 7 , MCA, which
provides :
A person commits the offense of incest
if he knowingly ... has sexual inter-
course with, or has sexual contact as
defined in 4 5 - 2 - 1 0 1 with a ...step-
daughter ... A person convicted of
incest shall be imprisoned in the state
prison for any term not to exceed 10
years. .. .
Issue No. 1
Does retroactive application of the incest statute void
Hall's conviction?
The incest statute had been amended on April 21, 1983,
effective October 1, 1983. The amendment added "stepdaugh-
ter" to the list of prohibited relationships. The control-
ling incest statute for Hall's acts on July 2, 1983, did not
include a stepdaughter among the victims. The Court notes
that this case proceeded through trial and sentencing, with-
out Hall or the State noticing the effective date of the
amended incest statute.
As applied to Hall, the State's retroactive enforcement
of the amended incest statute violated Article 11, Section
31, of the 1972 Montana Constitution: "No ex post facto law
... shall be passed by the legislature." This section is
identical to Art. 111, Sec. 11, of the 1889 Montana Constitu-
tion, under which we held: "[Rletroactive effect is not to be
given to a statute unless commanded by its context, terms, or
manifest purpose." Falligan v. School District (1917), 54
Mont. 177, 179, 169 P. 803, 804. We find nothing in the
amended incest statute which permits retroactive application.
The imposition of a sentence for a conviction, under statutes
not in force at the time the offense was committed, is an ex
post facto application of the law and therefore unconstitu-
tional. State v. Gone (1978), 179 Mont. 271, 280, 587 P.2d
1291, 1297.
In its brief, the State admits that the incest statute
was improperly and retroactively applied to an act which was
noncriminal on July 2, 1983. The State further admits that
the conviction is void but wishes to re-prosecute Hall on its
original charge of sexual assault.
Therefore, we reverse the conviction for incest as a
matter of law and proceed to the issue of retrial for sexual
assault.
Issue No. 2
Does double jeopardy bar Hall's retrial on a charge of
sexual assault?
The Fifth Amendment clause against double jeopardy is
enforceable in Montana through the Fourteenth Amendment.
Benton v. Maryland (1969), 395 U.S. 784, 795, 89 S.Ct. 2056,
2063, 23 L.Ed.2d 707, 716. Furthermore, the Montana Consti-
tution, Art. 11, Sec. 25, states: "No person shall be again
put in jeopardy for the same offense previously tried in any
jurisdiction." Jeopardy attached in Hall's incest trial at
the empaneling and swearing of the jury. Crist v. Bretz
(1978), 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24,
33.
The double jeopardy clause protects against a second
prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multi-
ple punishments for the same offense. State v. Lindseth
(Mont. 1983), 659 P.2d 845, 846, 40 St.Rep. 333, 335. North
Carolina v. Pearce (1.969), 395 U.S. 711, 717, 89 S.Ct. 2072,
2076, 23 L.Ed.2d 656, 664-665.
If the offense charged in the second trial is the same
in law and fact as the offense charged in the first trial,
the double jeopardy clause prohibits successive trials.
Brown v. Ohio (1977), 432 U.S. 161, 167, 97 S.Ct. 221, 226,
53 L.Ed.2d 187, 195, n. 6. In the instant case, double
jeopardy is therefore predicated on whether Hall's incestuous
conduct constituted the same offense in law and in fact as
sexual assault.
Sexual assault is defined in § 45-5-502, MCA:
A person who knowingly subjects another
not his spouse to any sexual contact
without consent commits the offense of
sexual assault . .. If the victim is
less than 16 years old and the offender
is 3 or more years older than the victim
.. . he shall be imprisoned in the
state prison for any term not to exceed
20 years. ..
Hall's conduct consisted of repeatedly fondling his
stepdaughter's genitals. Hall moved to dismiss the original
charge of sexual assault, asserting that the proper charge
should be incest, which carried a maximum sentence of only
ten years. At the hearing on Hall's motion, the State's
counsel argued that S 46-11-502 (4), MCA, gives the State
discretion to charge either sexual assault or incest. In
pertinent part, that statute provides:
When the same transaction may establish
the commission of more than one offense,
a person charged with such conduct may
be prosecuted for each such offense. He
may not, however, be convicted - - of more
than - offense i F
- one ... (4) - -
the of-
fenses differ only-in - - -one - de-
that - is
fined to prohibit - designated - -of
a kind
c o n d u c t qenerally - - other to
and the
rohibit - specific instance - -
a of such
:onduct ... [Emphasis added.]
In ana-lyzing the "general" and "specific" conduct
language, we note that the prosecution's proof of "sexual
contact" is the same in both the incest statute and the
sexual a.ssault statute. Section 45-2-101 (60), MCA, states:
"'Sexual contact' means any touching of the sexual or other
intimate parts of the person of another for the purpose of
arousing or gratifying the sexual desire of either party."
As applied to Hall, the statutory elements of incest
are (1) sexual contact, (2) knowingly, (3) with a
stepdaughter. The elements of sexual assault are (1) sexual
contact, (2) knowingly, (3) with another without consent.
Under the facts of this case, "without consent" requires no
separate proof as an element of sexual assault because the
stepdaughter was, at the time of the offense, under the age
of sixteen and the offender was more than three years older
than the victim. Section 45-5-502, MCA.
The first two elements of each offense are identical.
The third element defines the victim. The victim of Hall's
knowing sexual contact was his twelve-year-old stepdaughter.
Therefore, under S 46-11-502(4), the "designated kind of
conduct generally" refers to the sexual assault of anyone.
The "specific instance of such conduct" refers to the sexual
assault of Hall's stepdaughter.
The State supported this interpretation at the hearing
on Hall's motion to dismiss, when it asserted:
The State reads [46-11-502(4), MCA] to
apply to the situation at hand as fol-
lows: In the instant case the facts
involved support a charge of sexual
assault. The facts involved also sup-
port a charge of incest. Because of the
statute, 46-11-502(4), the State in its
discretion has charged the offense of
sexual assault, using the discretion
given to it by the statute.
We agree with the State. A second prosecution of Hall
for sexual assault would be based upon the same sexual con-
tact with the same victim on the same dates as alleged in the
incest charge. Hall's series of acts, which were necessary
to convict Hall of incest, are the same series of acts which
are necessary to convict Hall of sexual assault. Thus, in
Hall's case, the statutory elements for hoth offenses are
essentially the same. As we held in State v. Parmenter
(19411, 112 Mont. 312, 316, 116 P.2d 879, 880, double
jeopardy in a second trial exists if the acts identified in
the second information were admissible as evidence in the
first trial and would have sustained a conviction under the
first information.
Our analysis is supported by the State's own argument,
later at the same hearing, where it asserted:
The only difference between the two
statutes [incest and sexual assault] is
whether or not in this case the defen-
dant is the stepfather of the victim
... In any case, the defendant is not
put at any disadvantage by the fact that
we have charged sexual assault instead
of incest, simply because incest and
sexual assault are identical with the
exception of the family relationship
involved.
Hall repeatedly fondled his stepdaughter. Each act of
fondling would now be an incest offense and a sexual assault
offense. As we held in State v. Wells (1983), 658 ~ . 2 d381,
389, 40 St.Rep. 127, 135, if a person could not commit one
offense without committing the other, then the offenses are
the same. 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. Brown, 432
U.S. at 167, n.6.
Furthermore, Hall was convicted of a crime which did
not exist on the date of the charged offense. We discussed
the conviction of a nonexistent crime and subsequent prosecu-
tion in State v. Hembd (1982), 197 Mont. 438, 643 ~ . 2 d567.
Hembd was convicted by jury of the nonexistent crime of
"attempted misdemeanor negligent arson." We held that retri-
al for negligent arson would violate the prohibition against
double jeopardy. Hembd, 197 Mont. at 440, 643 P.2d at 568.
Hall's conviction of a nonexistent crime was due to a
legally defective information. The defect was fatal to a
valid conviction. However, Hall was subjected to jeopardy
and sentenced to five years imprisonment. Had Hall not
appealed, the defect would have gone unnoticed and Hall would
have been imprisoned. The prohibition against double jeopar-
dy is designed to ensure that a defendant will not be forced
to live in a continuing state of anxiety and insecurity.
Ohio v. Johnson (1984), 467 U.S. 493, 498-499, 104 S-Ct.
2536, 2542, 81 L.Ed.2d 425, 433. More importantly, a defen-
dant whose conviction is reversed, because the evidence is
insufficient as a matter of law to sustain the conviction,
cannot be retried. The purposes of the double jeopardy
clause "would be negated were we to afford the government an
opportunity for the proverbial 'second bite of the apple. "'
Burks v. United States (19781, 437 U.S. 1, 17, 98 S.Ct. 21.41,
In conclusion, the State's prosecution of Hall in the
original trial, on a charge of incest, bars Hall's retrial on
a charge of sexual assault.
We reverse, with instructions to dismiss.
We concur: I/