State v. Clawson

No. 89-108

I N THE SUPREME COURT O F THE S T A T E O F MONTANA

1989

S T A T E O F MONTANA,

P l a i n t i f f and R e s p o n d e n t ,
-vs-

SHAWN DREW CLAWSON,

D e f e n d a n t and A p p e l l a n t .

u
A P P E A L FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c $
I n and f o r t h e C o u n t y of L e w i s & C l a r k , -4
T h e H o n o r a b l e H e n r y L o b l e , Judge presiding.

COUNSEL O F RECORD:

For A p p e l l a n t :

Edmund F. S h e e h y , J r . ; C a n n o n & Sheehy, H e l e n a ,
Montana

For R e s p o n d e n t :

Hon. Marc Racicot, Attorney General, Helena, Montana
P a u l D. J o h n s o n , A s s t . A t t y . G e n e r a l , H e l e n a
M i k e M c G r a t h , C o u n t y A t t o r n e y ; C a r o l y n A. Clemens,
Deputy County Atty., Helena, Montana

S u b m i t t e d on B r i e f s : Aug. 24, 1989

Decided: October 19, 1989
P

Filed:

I

1 Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

Defendant, Shawn Drew Clawson, was charged with aggra-
vated kidnapping, aggravated assault, sexual intercourse
without consent, and attempted deliberate homicide in the
District Court for the First Judicial District, Lewis and
Clark County. The aggravated assault charge was dismissed.
The jury found defendant guilty as charged of the offenses of
of aggravated kidnapping, sexual intercourse without consent,
and attempted deliberate homicide. Defendant was sentenced
to 100 years for aggravated kidnapping, 100 years for at-
tempted deliberate homicide, 40 years for sexual intercourse
without consent, 100 years as a persistent felony offender,
and 10 years for the use of a weapon, to run consecutively,
making a total of 350 years. He was also declared ineligible
for parole. Defendant appeals. We affirm.
Defendant presents three issues on appeal:
1. Did the District Court err in ruling that sexual
intercourse without consent is not a lesser included offense
of aggravated kidnapping, and therefore not dismissing the
charge of aggravated kidnapping?
2. Did the District Court err in finding that the
offense of attempted deliberate homicide was not impliedly
repealed by the newly enacted offense of criminal
endangerment?
3. Did the District Court err in denying defendant's
motion for mistrial when the prosecution addressed punishment
in its rebuttal closing argument?
The victim, L.B., lived in Helena, Montana. Near mid-
night, on June 10, 1980, L.B. received a phone call from a
man stating that he had borrowed some car parts and tools
from her husband and wanted to return them that night. L.B.
felt uneasy because of the call and called her husband who
was working i n t h e s t a t e o f Idaho. H e d i d n o t r e c a l l l o a n i n g
t o o l s t o anyone. H e r husband c a l l e d l a t e r t o make s u r e s h e
was a l l right. He a l s o asked a male friend, Mr. E., in
Helena t o check on L . B .
Mr. E. called L.B. shortly after the cal-1 from h e r
husband. While h e was t a l k i n g t o h e r , t h e d e f e n d a n t b u r s t
i n t o t h e house t h r o u g h a bedroom window. L.B. testified that
s h e r e c o g n i z e d d e f e n d a n t a s t h e man who had come t o h e r home
a week e a r l i e r r e q u e s t i n g a t o u r o f i t b e c a u s e it was f o r
s a l e , and a l s o a s t h e man who made t h e phone c a l l e a r l i e r
t h a t night. A s h e approached h e r , s h e screamed "Oh no, Oh
no." Defendant p u t a k n i f e t o L . B . ' s t h r o a t and t h e n hung up
t h e phone. He f o r c e d h e r t o l e a v e c l a d o n l y i n a n i g h t s h i r t
and w i t h o u t s l i p p e r s , and t o o k h e r t o h i s c a r s e v e r a l b l o c k s
away. She made s e v e r a l u n s u c c e s s f u l e s c a p e a t t e m p t s .
Because t h e r e a r e no s i g n i f i c a n t f a c t u a l i s s u e s r a i s e d
by t h e d e f e n d a n t we w i l l n o t d e t a i l t h e v e r y e x t e n s i v e c r i m i -
n a l c o n d u c t o f t h e d e f e n d a n t which extended o v e r a p e r i o d o f
many h o u r s , s t a r t i n g a f t e r 1:00 a.m. Beginning i n a v a c a n t
bus n e a r h e r home and t h e n c o n t i n u i n g i n v a r i o u s l o c a t i o n s
around t h e c i t y , d e f e n d a n t r e p e a t e d l y committed a c t s of
s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t on L . B . , and i n a d d i t i o n ,
by f o r c e r e q u i r e d h e r t o t a k e p a r t i n v a r i o u s d e v i a t e s e x u a l
acts. Defendant r e p e a t e d l y t o r t u r e d L . R . , choked h e r a
number o f t i m e s , burned h e r body w i t h c i g a r e t t e s and b e a t h e r
physically with a club. F i n a l l y , a f t e r d r i v i n g L.B. s e v e r a l
m i l e s o u t o f town, d e f e n d a n t slammed h e r head i n t o a r o c k and
s t a b b e d h e r 1 5 t i m e s i n h e r c h e s t and abdomen. W e emphasize
t h a t t h e r e c o r d i s d e v o i d o f any e v i d e n c e , o r even s u g g e s t i o n
o f e v i d e n c e , which d e m o n s t r a t e s c o n s e n t o r p a r t i c i p a t i o n i n
any o f t h e conduct by L.B. The b e s t i a l i t y o f t h e c o n d u c t on
t h e p a r t o f d e f e n d a n t i s overwhelmingly p r e s e n t i n t h e
record. We are unable to comprehend the lack of
consideration for another human being which was demonstrated
by defendant, and which is apparent even from his own testi-
mony. In the event that defendant finds it appropriate to
seek further review, we invite any federal court to review
the extensive transcript in order to gain an adequate under-
standing of the facts of this case.
Because of his fear of being caught, defendant concocted
a story for L.B. to tell Mr. E. in order to explain why she
hung up on him. Defendant forced L.B. to call Mr. E. and to
relay the story about friends with whom she left to go drink-
ing in Butte. L.B. attempted to tip off Mr. E. by asking
questions about his wife although he was unmarried. Mr. E.
had already called the police and sent them to L.B.'s home.
Defendant also forced L.B. to call the police with the same
phony story. As dawn approached, the defendant became ner-
vous and drove L.B. out of Helena into the foothills near
Canyon Ferry. He stopped when L.B. said that she had to go
to the bathroom.
L.B. testified that she next awoke in the bottom of a
ravine, clad in only her nightshirt, and bleeding from her
wounds. She testified that she did not move at all that day
because she was not strong enough to get up. At dusk she
walked for about half an hour, and during that night alter-
nated between walking and sleeping. Cactus spines punctured
her bare feet. In the morning she slowly made her way out of
the ravine to a road. Two people in a pickup truck drove
past and saw her sitting on the side of the road with blood
on her head. They rushed her to the hospital, where it was
discovered she had been stabbed 15 times in her chest and
abdomen. The hospital physician who treated L.B. testified
that she had several "potentially fatal stab wounds," had
lost a "minimum of 25% of her blood volume," and that her
head wounds would have been potentially fatal had they not
"occurred on a particularly hard portion of the skull." He
testified that L.B. probably would not have survived more
than a few hours, had she not been rescued.
I
Did the District Court err in ruling that sexual inter-
course without consent is not a lesser included offense of
aggravated kidnapping, and therefore not dismissing the
charge of aggravated kidnapping?
Defendant contends that pursuant to 5 46-11-502, MCA,
sexual intercourse without consent is a lesser included
offense of aggravated kidnapping and that he cannot be con-
victed of both without resulting in double jeopardy. The
basis of his claim is that the "without consent" element of
sexual intercourse without consent is established by the
kidnapping because the taking of someone against her will is
without consent. At the close of the State's case-in-chief,
defendant moved to dismiss the charge of aggravated kidnap-
ping for that reason.
The State argues that in determining if one offense
includes another, the statutory elements of each offense must
be analyzed to determine if each offense contains an element
different from the other. The State refers to a number of
Montana cases and in particular relies upon State v. Thornton
(1985), 218 Mont. 317, 708 P.2d 273. Defendant agrees that
Thornton sets forth the appropriate standard. In Thornton
- -
the standard is discussed at some length as follows:

Defendant's argument relies upon the holding
found in Blockburger v. United States (1932), 284
U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306,
309, which states:
"The applicable rule is that where the same
act or transaction constitutes a violation of
two distinct stat,utoryprovisions, 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. "
The first sentence of S 46-11-502, MCA, states:
"When the same transaction may establish the com-
mission of more than one offense, a person charged
with such conduct may be prosecuted for each such
offense." The statute goes on to enumerate some
exceptions to this statement. Defendant, however,
has not indicated which exception he relies on, but
his argument appears to center around exception
(1). This exception states: "[Defendant] may not,
however, be convicted of more than one offense if .
.
. one offense is included in the other.
In a series of recent cases this Court has
clarified the application of the Blockburger rule
and S 46-11-502. To determine if one offense is
includable within another, the analysis looks to
the statutory elements, not the particular factual
situation. (Citations omitted. ) If each offense
contains an element different than the other there
is no inclusion, even though there may be a sub-
stantial overlap in proof. (Citations omitted.)
The State maintains that the statutory definition of sexual
intercourse without consent does not require the p,urpose to
facilitate commission of a felony as defined in this case for
aggravated kidnapping. In a similar manner, the statutory
definition of aggravated kidnapping as here charged, does not
require sexual intercourse without consent, but only the
purpose to facilitate commission of a felony. We agree.
Under S 45-5-303(l) (a) and (c), MCA, the offense of
aggravated kidnapping is committed when 1) a person knowingly
or purposely, 2) without lawful authority, 3) restrains
another person 4) by the use of threats or physical force, 5)
with the purpose to facilitate commission of any felony.
Section 45-5-503(1), MCA, provides that a person commits the
offense of sexual intercourse without consent when he 1)
knowingly, 2) has sexual intercourse, 3) without consent with
a person of the opposite sex. We look to the statutes to
determine if each offense requires proof of a fact which the
other does not. State v. Madera (1983), 206 Mont. 140, 670
P.2d 552.
To prove aggravated kidnapping the State must prove the
kidnapping was committed with the purpose to facilitate
commission of any felony. The State need not prove the
actual commission of a felony. The State need only prove
that there was the purpose to facilitate or aid in the com-
mission of a felony. As appears from $ 45-5-503(l), MCA,
that element is not required to prove sexual intercourse
without consent.
In order to prove sexual intercourse without consent,
the State must prove an act of sexual intercourse. That
element is not required under the aggravated kidnapping
statute, $ 45-5-303 (1)(a) and (c), MCA.
Our comparison of the stat,utory elements of both crimes
makes it clear that under the Thornton test, each offense
contains an element different than the other. As a result,
it is clear that one offense is not included in the other as
prohibited under (5 46-11-502(1), MCA. That disposes of the
principal argument on the part of the defendant.
In addition, on appeal, defendant attempted to argue the
application of (5 46-11-503(4), MCA, which provides that a
person may not be convicted of more than one offense if the
offenses differ only in that one is defined to prohibit a
designated kind of conduct generally and the other prohibits
a specific instance of such conduct. As pointed out by the
State, the defendant did not object on this theory at the
trial court level. It is true that the district court may
not be put in error for a ruling that it has not made.
Nonetheless we will briefly discuss this theory in order to
eliminate the contention of the defendant. Clearly sexual
intercourse without consent is not a specific instance of
aggravated kidnapping. As a result there is a failure to
meet the definitional provision of § 46-11-503, MCA.
We therefore conclude that under § 46-11-502, MCA, and
Thornton, sexual intercourse without consent is not a lesser
included offense of aggravated kidnapping. We affirm the
holding of the District Court in so ruling.
I1
Did the District Court err in finding that the offense
of attempted deliberate homicide was not impliedly repealed
by the newly enacted offense of criminal endangerment?
The offense of attempt is defined in 5 45-4-103(1), MCA,
as follows:

A person commits the offense of attempt when, with
the purpose to commit a specific offense, he does
any act toward the commission of such offense.
A person commits the offense of deliberate homicide as
defined in § 45-5-102 (I), MCA, if:

(a) he purposely or knowingly causes the death of
another human being; or
(b) he attempts to commit, commits, or is legally
accountable for the attempt or commission of rob-
bery, sexual intercourse without consent, arson,
burglary, kidnapping, aggravated kidnapping, . . .
or any other forcible felony and in the course of
the forcible felony or flight thereafter, he or any
person legally accountable for the crime causes the
death of another human being.
Criminal endangerment is defined in 5 45-5-207(1), MCA:

(1) A person who knowingly engages in conduct that
creates a substantial risk of death or serious
bodily injury to another commits the offense of
criminal endangerment.
Defendant argues that the intent of the 1987 Montana
Legislature in enacting the criminal endangerment statute 5
45-5-207, MCA, was to impliedly repeal the offense of at-
tempted deliberate homicide. This would reduce the penalty
imposed on defendant from a possible maximum penalty of life
imprisonment to a maximum penalty of ten years. He contends
that proof of criminal endangerment would show attempted
deliberate homicide or vice versa, so it would not make sense
to say that both offenses still exist under Montana law.
The State contends that any intention of the legislature
to repeal an offense must be clear and manifest, which is not
present in this case. It maintains that the key is whether
each statute requires proof of an additional fact which the
other does not require. It argues that because criminal
endangerment does not require a purposeful act to cause the
death of a human being, as does attempted deliberate homi-
cide, defendant's argument fails.
The legislative history does not indicate that the
creation of the offense of criminal endangerment impliedly
repealed the offense of attempted deliberate homicide. The
offense entails a wide variety of offenses, resulting from
gross negligence and reckless behavior. Judiciary Committee
Notes, February 5, 1987, page 4. The legislature considered
endangerment statutes of Colorado, Washington, Oregon, Alaska
and Arizona in drafting the criminal endangerment statute.
Those states all consider endangerment as an assault-type
offense and have classified it as a misdemeanor, gross misde-
meanor, and a felony.
One of the cases analyzed by the legislature was a
Washington Supreme Court decision. In that case, the defen-
dant fired a .22 rifle at passing cars, parked cars and
apartment buildings as a Halloween prank. He was convicted
of assault and reckless endangerment. The reckless endanger-
ment charge was based on the firing of the gun at an inhabit-
ed apartment building where one bullet went through a window
and into a wall. The Court ruled that this did not consti-
tute double jeopardy, holding that "definite punishment" is
not the same as "double punishment." State v. Turner (1981),
29 Wash.App. 282, 627 P.2d 1324.
Washington law defines "reckless endangerment" as
follows:

(1) A person is guilty of reckless endangerment
when he recklessly engages in conduct which creates
a substantial risk of death or serious physical
injury to another person.
(2) Reckless endangerment is a gross misdemeanor.
Wash. Rev. Code S9A.36.050 (1975) . The only significant
difference between the Washington statute and the Montana
statute is the use of the term "reckless" in the Washington
statute rather than "knowingly" as defined in Montana.
Either way it is clear that the statute is created to punish
reckless or negligent behavior which has the inherent poten-
tial of resulting in death or serious bodily injury to anoth-
er person. Thus, criminal endangerment is clearly
distinguishable from attempted deliberate homicide because
the purpose of the behavior itself is different even if the
result of the behavior may be the same. We affirm the Dis-
trict Court's conclusion that the offense of attempted delib-
erate homicide was not impliedly repealed by the newly
enacted offense of criminal endangerment.

Did the District Court err in denying defendant's motion
for mistrial when the prosecution addressed punishment in its
rebuttal closing argument?
At trial, defendant admitted to committing aggravated
kidnapping and sexual intercourse without consent. The jury,
then, only needed to decide whether defendant committed
attempted deliberate homicide or either mitigated attempted
deliberate homicide or criminal endangerment. As already
discussed, defendant adamantly argued that he did not intend
to kill L.B. so he could only be charged with criminal endan-
germent. During closing arguments, the State made reference
to the differences in punishment in these offenses. This was
the basis of defendant's motion. The pertinent part of the
disputed closing argument follows:

State's Closing Argument:
What about the defendant? Do you believe him? Is
he a credible witness? Does he have a motive to
lie? Sure he does. I think he summed it up in his
statement that he made to [L.R. ] in the car when
Mr. Sheehy said well what did you talk about? I
don't know why I am doing this. I just got out of
jail for doing this. It happens every time I see
an attractive woman. That is what he said. And
that is why he is lying in this case. He does not
want to go back to jail. So he told you a bare
outline of what happened that night. He admitted-
to parts of it. He admitted to parts that there
was physical evidence to substantiate, things that
he couldn't dispute because the evidence was bla-
tantly there in front of him. And then he mini-
mized the rest of it ...
Defendant's Closing Argument:
Now--I know Ms. Clemens says Shawn Drew Calwson has
got a reason to lie. Doesn't want to go back to
jail when he tells you specifically that he didn't
have the intent to kill her. [H]e is going back to
jail. He is going back to jail; has been in jail
since the 15th of June, 14th of June. He got up
here and admitted his guilt, admitted that he had
sexual intercourse without consent, admitted that
he had aggravated kidnapping. Why? If he intended
to kill her wouldn't he say I intended to kill her?
What has he got to gain from that? It has got
nothing to do with not going back to jail . . .
State's Rebuttal:
 There is a big difference between criminal endan-
germent and attempted deliberate homicide. Mr.
Clawson is worried about how long he is going to be
in jail. HOW many years he will be there and
whether he will ever be out again. That is what he
is worried about. That is why his attorney wants
you to find him guilty of criminal endangerment and
not attempted deliberate homicide.

The State maintains that this was not prejudicial in
light of the cautionary instructions given to the jury imme-
diately after denying the motion:

You are not to be concerned with the penalty pro-
vided by law for the offenses charged or to specu-
late on what it might be or should be in this case.
Imposing sentence within the bounds set by the
legislature is the exclusive business of the Court
and has nothing whatever to do with your verdict.
Your task is to consider the facts and render your
verdict upon the facts . ..
You should take the law in this case from the
instructions alone. You should not give any weight
to statements of counsel or of anyone else as to
what the law is, nor should you allow yourselves to
decide this case contrary to these instructions,
even though you might believe that the law ought to
be otherwise.

The State further points out the District Court's ruling on
the motion:

I have no objection to telling the jury that in
accordance with the instructions that they were
given that punishment is not their job, it is my
job. And they are not to consider it. But I do
not think that a mis-trial should be granted. I
don't think the jury was in any way prejudiced by
it and as I did remark at one time the Court's
instruction refers to mitigated attempted,
 mitigated deliberate homicide and criminal endan-
germent as being lesser included offenses. From
that almost any person of average intelligence
would surmise that the punishment for a lesser
included offense is less than it is for the main
crime. I just think that is--that is implied in
the Court's instructions. So it is just one of
those things that I think everybody understood.
The State contends that even if the remarks in closing were
improper, any error is presumed to be corrected if the Dis-
trict Court gave the jury a proper cautionary instruction.
There must be a manifest necessity to declare a mistrial
and the defendant must have been deprived of a fair and
impartial trial. State v. Brush (1987), 741 P.2d 1333, 1336.

The test for declaring a mistrial was stated by the
United States Supreme Court in United States v.
Perez (1824), 22 U.S. (9 Wheat.) 579, 580: "[Tlhe
law has invested Courts of justice with the author-
ity to discharge a jury from giving any verdict,
whenever, in their opinion, taking all the circum-
stances into consideration, there is a manifest
necessity for the act, or the ends of public jus-
tice would otherwise be defeated. They are to
exercise a sound discretion on the subject . . .
[Tlhe power ought to be used with the greatest
caution, under urgent circumstances, and for very
plain and obvious causes; . . . State v. Close
(1981), 623 P.2d 940, 945-946, 38 St.Rep. 177, 183.
State v. Doney, (Mont. 1981), 636 P.2d 1377, 1383, 38 St.Rep.

The references to the differences in punishment were
made to explain why the defendant had a motive to lie. We
agree with the District Court's conclusion that there was no
prejudice to the defendant by the references to punishment.
Furthermore, the evidence is replete with detailed testimony
of L.B. which overwhelmingly established the offense of
attempted deliberate homicide. The District Court promptly
gave the jury a cautionary instruction admonishing them to
disregard the State's reference to punishment. We conclude
that the District Court was correct in denying the defen-
dant's motion for mistrial on this theory.
We also note that the defendant argued that the action
of the State in calling the defendant a "liar" was prejudi-
cial. The State's reference to defendant as a "liar" was
nothing more than an opinion based on the State's analysis of
evidence, and did not constitute an expression of the State's
personal opinion of guilt. See State v. Armstrong (1980),
189 Mont. 407, 616 P.2d 341. We conclude there was no basis
for mistrial as a result of this action by the State.
We affirm the District Court.

We Concur: 4

Justices

Justice John C. Sheehy did not participate in this matter.