NO. 91-334
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SEAN DEAN OGLE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas Alan Kragh, Rosscup & Kragh, Polson, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, George Schunk,
Assistant Attorney General, Helena, Montana
Larry J. Nistler, County Attorney, Polson, Montana
submitted on Briefs: June 26, 1992
Decided: November 12, 1992
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the
Court.
Appellant Sean Dean Ogle was tried by a jury and convicted of
sexual assault, a felony, pursuant to g 45-5-502, MCA (1989), in
the Twentieth Judicial District Court, Lake County. Appellant
appeals from this conviction. We affirm.
Appellant offers three issues for this Court to consider.
1. Was appellant denied his right to a fair trial by
repeated instances of alleged prosecutorial misconduct?
2. Did the District Court err by instructing the jury that
sexual assault was a lesser included offense of sexual intercourse
without consent?
3. Did the District Court err by instructing the jury that
"without consentw was an essential element of the offense of sexual
assault?
Appellant lived in Polson with his parents across the street
from K.B. and S.B. and their children, including their 13-year-old
adopted daughter, J.C.B. K. B. was the pastor of a local church and
appellant became active in church activities. At the same time,
appellant also developed a friendship with J.C.B., who was
developmentally disabled and needed special education. J.C.B.
enjoyed fishing and frequently would go fishing at the public boat
docks near her home. Appellant would sometimes go with J.C.B. and
play guitar while she fished.
On October 11, 1990, the family planned to attend a local high
school basketball game. J.C.B. told her parents that she would
rather go fishing and they agreed. At some point, appellant said
that he would watch J.C.B. to ensure her safety. When her parents
returned from the game, J.C.B. was at home and they did not notice
anything unusual.
The following Saturday, S.B. was doing the weekly laundry when
.
she found a note in the pocket of J C.B. ' s jeans. The note was
addressed to appellant and was signed "your sex girlfriend.'' A few
days later, J.C.B.'s mother spoke with her about the note and
during the conversation J.C.B. admitted to having sex with
appellant. Later in the evening, J.C.B. repeated her story to her
father, who then informed the Lake County Sheriff's Office. After
J.C.B. was privately interviewed by Officer Walrod, a Justice Court
complaint was filed against appellant and he was arrested and taken
into custody on October 17, 1990.
The next morning appellant voluntarily confessed during two
taped interviews to having sexual contact with J.C. B. On the night
of the arrest, he also confessed to a fellow jail inmate, Corey
White. At trial, White testified that appellant said he had
touched J.C.B. with his penis.
An information was filed in Lake County District Court
charging appellant with sexual intercourse without consent, a
felony, and failure to register as a sexual offender, a
misdemeanor. Appellant pled guilty to the misdemeanor, with
3
sentencing deferred until after the completion of trial on the
charge of sexual intercourse without consent. A jury trial was
held on January 21, 1991, and appellant was found guilty of the
lesser-included offense of sexual assault, a felony.
On direct examination, the Lake County Attorney questioned
J.C.B. in the following manner:
We talked about what promising to tell the truth
"so help you Godg1
meant, remember?
(Witness nodded.)
What would it mean if you lied?
I don't know.
Would it be a bad thing towards God?
Yeah.
Okay. Do you love God?
Yeah.
And you're very--you attend church at your father's
church?
J.C.B. also testified at trial that appellant placed his penis
in her vagina and rubbed his penis on her buttocks. This testimony
was consistent with what J.C.B. had previously told her father, and
the Lake County Undersheriff, both of whom testified at trial. At
trial, the appellant denied he had any sexual contact with J.C.B.
Appellant also testified that after reading a law book
provided to him on his first night in jail, he decided to confess
to the lesser-included offense of sexual assault in hope of
securing a deal with the interviewing undersheriff and receiving
4
half the prison sentence possible for sexual intercourse without
consent. During cross-examination, the following exchange took
place between appellant and the Lake County Attorney.
You're married, are you not?
Yes.
You have a small baby?
She has a baby.
It's not yours?
It's not mine.
But she is still married to you?
I'm not sure. She put in for a divorce and that's
the last I heard about it. I haven't talked to
her. She moved. Well, I had asked her for a
divorce because I caught her in bed with my best
friend and some other things that happened.
And you don't find her any more attractive than you
found [J.C.B.], right?
I loved my wife a great deal
You loved [J.C.B.], too, didn't you?
NO.
You used her and threw her away the same way you
threw vour wife awav?
I never told [Corey White] anything had happened.
All of those things were lies; is that right?
I never told Corey White I had anything to do with
her. I had told Walrod what was necessary to make
it through to the next day to where I could try and
fight that tape because I can fight a tape and I
can't fight death.
Q. Let's get this straight. [J.C.B.] lied, right?
A. Apparently, yes.
Q. Corey White lied?
A. Yes, and he had plenty of reason to. [Emphasis
added. ]
During closing argument the State made the following comments:
You have to accept his version of the facts as he
testified today and reject his version of the facts as he
gave it at other times. You have to find that little
[J.C.B. 1, when she came in and testified, lied. You have
to find that Corey White, who heard the confession from
the defendant, lied. You would have to find that both
the previous confessions of the defendant on tape are
lies.
Today one of the worst lies I would suggest you may
have heard is when he said he didn't find her desirable.
During the settling of jury instructions, the prosecution
requested that certain instructions be given on sexual assault.
Defense counsel objected to the giving of the instructions without
explanation. The instructions on sexual assault were given over
this objection.
At trial, the jury found the defendant not guilty of sexual
intercourse without consent, but convicted him of the crime of
sexual assault, a felony. At sentencing, the District Court found
appellant to be a persistent felony offender pursuant to
§ 46-18-501, MCA. The court sentenced appellant to 60 years in the
Montana State Prison with 20 years suspended. For purposes of this
appeal, the appellant only appeals his conviction of sexual
assault.
Was appellant denied his right to a fair trial by repeated
instances of alleged prosecutorial misconduct?
Appellant contends that the State engaged in prosecutorial
misconduct by eliciting inadmissible evidence with no factual
basis; characterizing witnesses as liars; using misleading and
inflammatory argument; expressing personal opinions; and using the
complaining witness's religious beliefs to enhance her credibility.
Section 46-20-104(2), MCA, procedurally bars review of alleged
errors not objected to at trial.
(2) Upon appeal from a judgment, the court may
review the verdict or decision and any alleged error
objected to which involves the merits or necessarily
affects the judgment. Failure to make a timely objection
during trial constitutes a waiver of the objection except
as provided in 46-20-701(2).
Section 46-20-701 (2)(a)- (c) MCA, allows claims which are presented
,
for the first time on appeal if the error is prejudicial to the
defendant's guilt and:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant or his
attorney that prevented the claim from being raised and
disposed of; or
(c) material and controlling facts upon which the
claim is predicated where not known to the defendant or
his attorney and could not have been ascertained by the
exercise of reasonable diligence.
The record reflects that in all of the instances appellant
claims were prosecutorial misconduct, not one objection was made by
defense counsel. Appellant's claim does not fall into one of the
three exceptions listed in S 46-20-701, MCA.
Appellant also alleges that not withstanding the lack of
objections at trial, the prosecution's misconduct amounted to plain
error. In State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588, we
stated:
The plain error doctrine provides a remedy in such
situations to prevent manifest injustice. When the
substantial rights of a defendant are involved, the lack
of timely objection does not preclude us from exercising
our power of discretionary review to examine any error at
the trial court level.
Wilkins, 746 P.2d at 589. We utilize the plain error doctrine only
when it is necessary to insure a fair and impartial trial.
Wilkins, 746 P.2d at 589. The plain error doctrine is used
sparingly and should not be relied upon by counsel. Wilkins, 746
P.2d at 589. The record does not contain any error not objected to
that demonstrates an infringement of the substantial rights of
appellant that persuades us to exercise our discretionary review.
We hold that appellant was not denied his right to a fair trial.
Did the ~istrictCourt err by instructing the jury that sexual
assault was a lesser included offense of sexual intercourse without
consent?
At the settlement conference for jury instructions, the State
proposed a series of instructions which sought to include sexual
assault as a lesser included offense of sexual intercourse. The
record reflects that defense counsel objected to the giving of the
lesser included instruction but did not specifically state his
reasons for the objections. Over defense counsel objections, the
District Court gave the State's lesser included instructions as
Court Instructions No. 11 through No. 15.
Section 46-16-401 (4)(b), MCA (1989) requires that counsel has
,
a duty to specify the grounds upon which a jury instruction
objection is based. The statute provides in relevant part:
On such settlement of instructions, the respective
counsel or the parties shall specify and state the
particular ground on which an instruction is objected to.
It shall not be sufficient to object generally that the
instruction does not state the law or is against the law,
but the objection must specify particularly wherein the
instruction is insufficient or does not state the law or
what particular clause therein is objected to.
In absence of a proper objection, the lesser-included offense issue
was not preserved for appeal in accordance with 5 46-20-701(2),
MCA. Without discussing whether 45-5-502, MCA (1989), is a
lesser-included offense of 5 45-5-503, MCA (1989), we hold that
appellant waived his objection for the purpose of this appeal.
Did the District Court err by instructing the jury that
"without consentv1
was an essential element of the offense of sexual
assault?
In Instruction No. 12, the District Court stated that an
element of sexual assault is that the sexual contact was without
the consent of J.C.B. It has long been the rule in Montana that
ltwithout consentl9 is not an element of sexual assault where the
victim is less than 14 years old and the offender is three or more
years older than the victim. State v . Price (1980), 191 Mont. 1,
622 P.2d 160; State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339;
State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367;
5 45-5-502, MCA (1989). J.C.B. was 13 years old and appellant was
25 years old at the time of the offense. The court also gave
Instruction No. 14 which stated that:
Consent is ineffective, under the offense of Sexual
Assault, if the victim is less than 14 years old and the
offender is 3 or more years older than the victim.
Instruction No. 12 added an e x t r a element for the State to prove
beyond a reasonable doubt. Thus, the giving of the erroneous
instruction did not prejudice the appellant.
In addition, appellant failed to object to this instruction on
the grounds stated for in this appeal. Defense counsel objected to
Instruction No. 12 on the grounds that it addressed the
lesser-included offense. The giving of Instruction No. 14 cured
any possible error by the erroneous instruction. We hold that the
District Court did not error in giving Instruction No. 12.
We affirm.
We concur:
November 12, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Thomas A. Kragh
Attorney at Law
410 1st St. E.
Polson, MT 59860
HON. MARC RACICOT, Attorney General
George Schunk, Assistant
Justice Building
Helena, MT 59620
LARRY J. NISTLEK, County Attorney
Lake County Courthouse
106 Fourth Avenue East
Polson, MT 59860-2183
ED SMITH
CLERK OF THE SUPREME COURT
STATEnOF MONTANA