State v. Ray

NO. 93-256
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
DANNY A. RAY,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward McLean, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael Sol, Sol & Wolfe, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Kathy
Seeley, Assistant Attorney General, Helena, Montana;
Robert L. Deschamps, III, Missoula County Attorney,
Gary L. Henricks, Deputy County Attorney, Missoula,
Montana

Submitted on Briefs: April 14, 1994
Decided: October 6, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court,

Missoula County, jury verdict finding the defendant Danny Ray (Ray)

guilty of two counts of solicitation of sexual assault. We r-avsrse

and remand for a new trial.

The following are issues on appeal:

I. Did the District Court abuse its discretion when it

admitted testimony of prior acts?

II. Was the evidence presented insufficient to convict the

defendant of two counts of solicitation of sexual assault?

III. Was the jury instruction on solicitation given in the
second trial improper?

IV. Did the District Court err in admitting the testimony of

the two expert witnesses who were not identified as experts prior

to trial?

V. Was cumulative error committed in the instant case?

FACTUAL BACKGROUND

Ray has resided in the West Riverside neighborhood of East

Missoula since about 1971. He also has a shop in the area which

contains a second hand store and work shop where he builds

furniture. Ray is well known by most of the families in the

neighborhood. He has employed several persons from the area to

build furniture in the shop and in the past many children would
visit him, play at the shop or help with simple tasks. There was

considerable testimony during the trial that Ray would assist

families and children in the neighborhood who needed loans,

2
furniture, clothing and other items.

Ray would load some of the furniture he built and take it to

Spokane to sell. In about 1989, he started to take a neighborhood

man who was working for him building furniture, on the trips to

Spokane. Two or more children would generally accompany the men on

these trips. At some point, Ray's employee, Mike Triplett, stopped

going on trips to Spokane but the children, generally girls,
continued to accompany Ray.

J-E., one of the girls who often accompanied Ray on the trips,

testified at trial that when she and A.D. accompanied Ray, the

defendant would drive as far as Coeur'd Alene, Idaho, rent a motel

room with one bed and the girls would sleep in the bed with him.
She testified that when she slept in the bed with him, he would

touch her in her private area underneath her clothing and put his

fingers inside her.

Additionally, A.D. testified that Ray would touch her on her

breasts and her private area. She stated that sometimes he would

touch her breasts on top of her clothing and sometimes underneath

her clothing. She further testified that when he touched her

private parts, he would touch her on the inside of her clothes.

The two girls also testified that Ray would take them to the

skating rink or zoo while they were in Spokane. Additionally, they

related that Ray would take them shopping and buy them clothing and

other items while they were on their trips. J.E. testified that

she did not know whether the gifts were a reward for going to

Spokane, but A.D. did feel that the gifts were for accompanying Ray

3
to Spokane.
M.C. testified that she and her friends would ride with Ray in
his tan pickup. She stated that when he would shift gears he would
drop his hand on her leg and rub her leg. She further reported
that he would put his hands around the top of her body to take her
down from the truck although she did not think it was necessary.
She also testified that he touched her on the bottom once when they
were on their way to a party and the wind was blowing and he kept
pushing her skirt down.
Other facts will be provided as necessary in the body of the
opinion.
PROCEDURAL BACKGROUND
The original information was filed on May 13, 1991, charging
Ray with one count of solicitation of sexual intercourse without
consent. An amended information was subsequently filed charging
Ray with solicitation of sexual assault. A not guilty plea was
entered and trial was held on March 19 and 20, 1992. That resulted
in a mistrial when the jury could not reach a verdict in the case,
A motion was filed on March 31, 1992, for leave to file an
amended information charging Ray with two counts of solicitation of
sexual assault and one count of sexual assault. The motion was
granted on March 31, 1992. On April 7, 1992, a motion for leave to
file a second amended information was filed and the court granted
the motion on the same day. The second amended information
contained one count of tampering with witnesses.
A second trial was held on December 14 and 15, 1992. The jury

4
found Ray guilty of two counts of solicitation for sexual assault
and acquitted Ray of the one count of sexual assault.

OPINION

I. PRIOR ACTS
Did the District Court abuse its discretion when it admitted

testimony of prior acts?

Ray argues that evidence of prior acts was improperly
admitted. The State alleged that a person not a victim in the

charged conduct, S-E., was sexually assaulted by Ray approximately

16 to 18 years ago. Ray asserts that the acts were not

sufficiently similar, were too remote in time and their probative
value was outweighed by their prejudicial effect. The State
counters that the other acts about which S.E. testified were
sufficiently similar to the charged conduct and not too remote in

time. Moreover, the prior acts were properly admitted to shout

motive, mental state, and common scheme and their probative value

outweighed any prejudice to the defendant.

The standard of review for evidentiary rulings is whether the

District Court abused its discretion. State v. Crist (1992), 253

Mont. 442, 445, 833 P.2d 1052, 1054. On review, we will apply the

modified Just rule, established in State v. Matt (1991), 249 Mont.
136, 814 P.2d 52.

Matt sets forth the basis for admission of evidence of prior

acts as follows:

(1) The other crimes, wrongs or acts must be similar.

(2) The other crimes, wrongs or acts must not be remote
in time.

5
 (3) The evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity with such character, but
may be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.

(4) Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, misleading
of the jury, considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.

-, 814 P.2d at 56.
Matt

A key concern with the admission of prior acts in the instant
case is the fact that the prior act occurred approximately 16 to 18

years before the charged conduct. This raises the issue of whether

the prior acts are too remote in time and therefore violate the

second requirement of the modified Just rule. We are guided in our

decision by previous case law which leads us to conclude that the
prior acts at issue here are simply too remote to the charged

In State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, we

concluded that an isolated incident nine years before the charged

conduct would be too remote in time, but because there was a

continuing course of conduct any remoteness problem was alleviated.

We also stated that we would not establish any arbitrary time limit
for admitting prior acts where such a cut-off would exclude

probative evidence. Tecca, 714 P.2d at 139. See also Q-&&, 833

P.2d at 1055.

In the present case, the prior acts took place between 16 and

18 years before the conduct charged. Although the State included

intervening acts in its amended notice of intent to introduce
6
evidence of other acts, only one of the complainants involved in
those other acts, M.C., testified at trial. That particular other
act was also charged in the amended information in the count

alleging sexual assault. M.C. was named as the victim. M.C.
testified at the trial, and subsequent to her testimony, Ray made

a motion to dismiss the count of sexual assault because he believed

her testimony did not indicate any intentional sexual assault. Th?
trial judge stated that he did not believe that the jury would

return a guilty verdict on that particular count and if it did, he
would seriously consider the motion to dismiss the count at that

point. The jury did, in fact, acquit Ray of that charge. M.C. ‘S

testimony was, thus, for all intents and purposes, discounted by

the jury and the trial court. Accordingly, there are no intervening

acts which could constitute a continuing course of conduct between

the time of the incidents 16 to 18 years ago, and the charged

conduct.
Although we continue to decline to set arbitrary time limits

for admitting prior acts evidence, we hold that the two prior acts

to which S.E. testified at issue here and which occurred 16 to 18

years ago, without other intervening acts which would show a

continuing course of conduct, are simply too remote and do not meet
the second requirement of the modified Just rule established under

Matt-
-
Moreover, the fourth requirement of the modified Just rule,

whether the probative evidence is outweighed by the danger of

unfair prejudice, also cannot be satisfied. The evidence of prior

7
acts admitted in the second trial, so remote in time, Was

prejudicial. State v. Croteau (1991), 248 Mont. 403, 812 P.2d

1251, discusses the general policy to exclude evidence of Other

acts:
The general rule is that evidence of other crimes or
prior acts must be excluded. Rule 404(b), M.R.Evid. The
reason for this long-standing rule is that prior acts or
crimes are highly prejudicial to the defendant, and
usually irrelevant for purposes of the charged crime. In
State v. Tiedemann (1961), 139 Mont. 237, 242, 362 P.2d
529, 531, we explained:

"The general rule should be strictly enforced in all
cases where applicable, because of the prejudicial effect
and injustice of such evidence, and should not be
departed from except under conditions which clearly
justify such a departure."

Evidence of a defendant's prior acts or uncharged
misconduct creates the risk that the jury will penalize
a defendant simply for his past bad character.
Croteau, 812 P.2d at 1253. (Citations omitted.)

In the instant case, the trial court, during the course of the

first trial, denied the State's motion to admit evidence of the

same prior acts "[blecause the prejudicial effect of admitting

evidence of an isolated incident that occurred fifteen years prior

to the charged crime is likely to result in an emotional response

from the jury and because the probative value is in question..."

We agree that there is a high probability the jury could have

penalized the defendant simply for his past bad character. The

fourth requirement of the modified Just rule cannot be satisfied

either. Therefore, we conclude that the evidence of prior acts was

improperly admitted.

We hold that the District Court erred in admitting the

8
evidence of prior acts of the defendant and, accordingly, we
reverse the District Court on this issue and remand for new trial.

For the guidance of the court and counsel on retrial, however, we

will address the remaining legal issues raised by the defendant.
II. SUFFICIENCY OF EVIDENCE

Was the evidence presented sufficient to convict the defendant

of two counts of solicitation of sexual assault?

Since we are remanding for new trial on the basis of our

discussion in Issue I, it will, obviously, be up to the next juq
to determine the guilt or innocence of Ray on the basis of whatever

evidence is submitted at retrial. In his argument on appeal on
this Issue and on Issue III, however, Ray contends, that, apart
from the other crimes evidence, the evidence of his conduct in

Montana as regards J.E. and A.D., is not directly related to the

underlying offense of solicitation of sexual assault, is capable of
different interpretations, is otherwise innocent and, therefore,

cannot, as a matter of law, sustain a conviction for solicitation.

Ray contends that the evidence adduced at trial was insufficient to

support a conviction for solicitation of sexual assault.

In arguing for a narrower interpretation of the scope of

conduct which may be sufficient to prove solicitation, Ray suggests

that:
. . . under our case law . . . anything a criminal does to
make the commission of his own crime "easier or less
difficult" can be classified as "solicitation.1' T o
suggest that this is perhaps an overbroad reading of what
the legislature intended to do, is certainly supported by
the realization that anvthinq a criminal does can be
interpreted as making his crime easier: getting up in the
morning, for example. . . .
9
 The State insists that, under our prior cases, there was
sufficient evidence to establish Ray's facilitation of the sexual
assaults in Idaho, by his actions in Montana, and that his
conviction should stand.
The evidence presented to establish Ray's facilitation of the
sexual assaults included his promises of gifts if the girls went to
Spokane and the subsequent purchase of gifts of clothing and other
items for the children involved in the solicitation allegations.
At the time the offenses occurred Ray was over forty years old and
the two minor girls were ages nine and eleven.
J.E. testified that Ray offered to buy "clothes and stuff" if
the girls would go to Spokane and that he did, in fact, buy clothes
and other items if the girls would accompany him. She also
testified that she did not know whether the clothes and other items
were a reward for going to Spokane. She further testified that he
stated that they would get more clothes if they went to Spokane
alone because if he took two people, he could not buy as many
clothes. A.D. testified that Ray did buy her gifts as a reward for
going to Spokane. However, A.D. also testified, when asked if she
ever believed that if she did not go to Spokane, she would not get
8Vthings'8: "[c]ould be a couple times." Ray's attorney then asked,
a[c]ould be, but was there?" A.D. stated, "No." Ray conceded that.
the girls knew they would receive gifts if they accompanied him to
Spokane.
There was testimony by both girls that when they went to
Spokane, they generally would stop in Coeur'd Alene, Idaho, and.

10
stay overnight in a motel. There was usually only a single bed and
Ray and the girls would sleep in the same bed. The girls testified
that when they slept in the bed with him, he would touch their
breasts and private parts. The State contends thatthe jury could
infer from the above facts that the defendant "induced the girls to
spend nights alone in a motel room with him by offering to drive
them out of state and buy tbem gifts in Spokane."
However, although there was testimony that Ray did buy gifts
for the children involved in the instant case, there was also
testimony that he purchased gifts for other children in the
neighborhood, including the siblings of the girls involved in the
instant action. Additionally, there was testimony that he helped
out area families, including the families of the children involved
in the allegations. Ray would loan money to the families when
necessary and assist in the purchase of furniture and other
necessities for the household. There was testimony that he would
assist the families and children of the neighborhood with material
items because he, himself, had a very poor childhood.
Ray was charged with and was prosecuted in Montana for
inchoate offenses of solicitation, i.e. for I'... command[ing],
encourag[ing] or facilitat[ing]...," in Montana, the commission of
two sexual assaults in Idaho. Section 45-4-101, MCA. Montana's
jurisdiction to prosecute Ray derives from our statute which allows
this State to charge and to prosecute I'... conduct within [Montana
which] constitutes . . . solicitation . . . to commit in another
jurisdiction an offense under the laws of [Montana] and such other

11
jurisdiction." Section 46-2-101(1)(c), MCA; Ray was not charged

with nor was he prosecuted for the actual sexual assaults in the

state of Idaho; any such prosecution would, necessarily, have to be

conducted in that state.
Montana's offense of solicitation is set forth at 5 45-4-101,

MCA, and, in pertinent part, provides:
Solicitation. (1) A person commits the offense of
solicitation when, with the purpose that an offense be
committed, he commands, encourages, or facilitates the
commission of that offense.
The scope of conduct made criminal by Montana's solicitation

statute is more expansive than either the common law inchoate

offense or the Model Penal Code provision from which our statutory
offense was derived. State v. Bush (1981), 195 Mont. 475, 479, 636

P.2d 849, 851. In State v. Sage (1992), 255 Mont. 227, 841 P.2d

1142, we stated that:
Montana adopted its solicitation statute from the
Illinois Criminal Code of 1961. When Montana adopted it,
the Illinois statute read, "A person commits solicitation
when, with intent that an offense be committed, he
commands, encouraaes or reuuests another &Q commit that
offense." When the Montana Legislature adopted the
statute in 1973 it changed the language. The legislature
has not changed the statute since its enactment. The
Montana version states, "A person commits the offense of
solicitation when, with the purpose that an offense be
committed, he commands, encouraaes x facilitates the
commission of that offense."
- -
By modifying the statute, the legislature broadened the
types of conduct which are criminal under the
solicitation statute. § 45-4-101, MCA, (Emphasis added.)

m, 841 P.2d at1143. (Citations omitted.) The range of conduct

which might be used to prove the commission of that offense is best

illustrated by reference to the facts of Saqe and Bush.

12
 In Saqe, the defendant was charged with and convicted of
solicitation to commit incest. In that case, the defendant
repeatedly asked his daughter to "fool around" with him in a sexuai

manner. Moreover, he cut a peep hole in the bathroom wall so he

could watch her. He also installed a video camera so he could

videotape her in the bathroom. In Sase the defendant's acts were

unequivocal, capable of only one reasonable interpretation and

purpose and directly tended to command, encourage or facilitate the

commission of the offense of incest. The acts themselves were

sexual in nature. t5.!392, 841 P.2d at 1142.

In -I however, the defendant's conviction of the offense of
Bush

solicitation to possess dangerous drugs was affirmed on the basis
of proof of conduct which was much less directly and unequivocally

related to the underlying offense and which, as in the instant

case, involved conduct both within and without Montana that was,

without reference to the underlying crime, capable of being
interpreted as innocent and not culpable.

In that case the defendant, pretending to be a film maker who

photographed animals, solicited and, ultimately, retained Kohse, a

bartender, to be a film courier. Kohse was sent to Los Angeles

where she was then advised that she was going to, instead, be a

photographer, notwithstanding that she had no experience in

photography. She was minimally instructed in the use of

photographic equipment given to her by Bush and was then sent to
Peru to photograph zoo animals. She was contacted there by a

person named Dan, who took her to the soo, left her there for

13
several hours to photograph animals, but took her camera case. On
her return to the United States, customs agents discovered cocaine

hidden in a compartment in the lining of the camera case. Kohse
disclaimed any knowledge of how or when the drug was placed in the

camera case or who put it there.

In affirming his conviction of solicitation, we rejected
Bush's argument to the contrary and concluded that evidence of

events occurring outside the State of Montana were relevant to show

his mental state or purpose to commit the offense of solicitation
in Montana. Bush
-, 636 P.2d at 851. Moreover, we held that the

word V'facilitate" was not vague but was commonly understood to mean

"to make easier or less difficult: free from difficulty or

impediment," and that '*[iIn all cases, the actor must have the

purpose of promoting the commission of an offense." -, 636 P.2d
Bush

at 852. We also stated that it was irrelevant that the person

solicited did not know of the criminal purpose of the solicitation

or of the criminal nature of the conduct solicited. -I 636 P.2d
Bush

at 852.

As with Bush, the activities of the defendant upon which the

charges of solicitation of sexual assault are based in the instant

case, while capable of more than one interpretation and while, in

and of themselves, arguably innocent, are, nevertheless, legally

sufficient to sustain a conviction for that offense when viewed in
the context of defendant's conduct in the state of Idaho. While

Ray is not charged with nor can he be convicted of the actual

sexual assaults in Idaho, his conduct there, is, nonetheless,

14
relevant in the proof of the crimes of solicitation with which he
is charged in Montana. Bush 636 P.2d at 851. Such conduct
establishes his mental state and his purpose of promoting in
Montana, the commission of the offenses of sexual assault in Idaho.
The promise of or provision of gifts to poor children and the
assistance of families in need, without more, is innocent and not.
culpable conduct. Furthermore, such conduct, unlike the
defendant's acts in Saqe, is clearly not sexual in nature.
Nevertheless when such conduct is examined in the context of Ray's
repeated trips to Spokane where he spent his nights in a motel room

in Idaho, in a single bed, allegedly sexually assaulting the two
minor girls, who he had encouraged to make the trip with him, the
true purpose behind his otherwise innocent conduct in Montana
becomes clear.
The standard of review for determining the sufficiency of the
evidence in a jury trial is:
[Wlhether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. (Emphasis added.)
State v. Keys (1993), 258 Mont. 311, 319, 852 P.2d 621, 626. We
conclude that a rational trier of fact could, beyond a reasonable
doubt, infer that Ray's conduct in Montana was for the purpose of
inducing the girls to accompany him to Spokane and for the purpose
of facilitating the commission of the sexual assaults which he
allegedly committed in Idaho against the minors.
In resolving the legal issue raised by the defendant and in
addressing his arguments on appeal, we hold simply that the
15
evidence used to prove solicitation of sexual assault in this case

was legally sufficient. Whether the next jury determines that such

evidence, if admitted, is sufficient to sustain a conviction is, of

course, solely within the province of that finder of fact.

III. JURY INSTRUCTIONS
Was the jury instruction on solicitation given in the second

trial improper?
Ray asserts that the jury instruction provided by the District

Court in the second trial was not correct nor was it necessarily
clear to an ordinary jury. The State claims that the instruction
given at the second trial is the proper statement of the law. We

agree that the jury instruction provided at the second trial is the

proper statement of the law and was properly given.
The jury instruction given at the first trial stated:

A person commits the offense of solicitation when,
with the purpose that the offense of sexual assault be
committed, he encourages or facilitates another to commit
the crime of sexual assault.
....

However, in the second trial, the following jury instruction

was given:

A person commits the offense of solicitation when, with
the purpose that the offense of sexual assault be
committed, he commands, encourages or facilitates the
commission of that offense.

The jury instruction given in the first trial was an incorrect

statement of the law. It was based on the general definition of

solicitation, 5 45-2-101(62), MCA. However, the crime of

solicitation provides a more specific definition for solicitation,

and provides that a person commits the offense of solicitation when

16
he commands, encourages or facilitates the commission of that
offense. Section 45-4-101, MCA. The second jury instruction,
therefore, is the correct statement of the offense of solicitation
in Montana, and was properly given. We hold that the District
Court did not commit error when it gave jury instruction 17 in the
second trial.
IV. EXPERT TESTIMONY
Did the District Court err in admitting the testimony of the
two expert witnesses who were not identified as experts prior to
trial?
Ray also argues that two expert witnesses were not properly
identified. The State contends that they were identified but were
not identified as experts in the amended information filed on March

31, 1992, and the second amended information filed on April 7,
1992. The State conceded that the expert status of the witnesses
and a summary of their anticipated testimony should have been
provided to Ray. However, the State also asserts that prejudice
must be shown when there has been a violation of discovery, citing
State v. Forsyth (1988), 233 Mont. 389, 412, 761 P.2d 363, 377.
Section 46-15-322(l), MCA provides:
(1) Upon request, the prfOoSrecutor shall rn;;z
available to the defendant examination
reproduction the following material and information
within the prosecutory's possession or control:
(a) the names, addresses, and statements of all
persons whom the prosecutor may call as witnesses in the
case-in-chief:
(c) all written reports or statements of experts who
have personally examined the defendant or any evidence in
the particular case, together with the results of
physical examinations, scientific tests, experiments, or
17
 comparisons....
Moreover, the Omnibus order stated that:

1. The State shall immediately, and on a continuing
basis :
a.Disclose the names of the State's witnesses
(including experts), their statements, or a short summary
of their anticipated testimony if no statement exists.
b. Disclose and make available for inspection all
physical or documentary evidence in the State's
possession.

The trial occurred on December 14 and 15, 1992. The State had

previously listed the two witnesses at issue, but had not revealed
that they were to testify as experts nor did it provide any

statement of their prospective testimony. Although the State was

in clear violation of § 46-15-322(l), MCA, and the Omnibus Order,

Ray had over eight months to investigate the testimony of the two

witnesses, and there is no evidence that he made any attempt to

ascertain their status in the case or their potential testimony.
Because we reverse this case upon Issue I, we will not address

the effect of the State's violation of the rules of discovery upon
this case other than to note that the State was at fault in not

disclosing the status of the two experts and in failing to provide

their statements to the defense but that the defendant's claims of

prejudice ring somewhat hollow given his failure to ascertain the

status and testimony of the two witnesses whose identity he knew

for over eight months prior to the trial.

V. CUMUIATIVE ERROR

Was cumulative error committed in the instant case?

Finally, Ray claims that this case should be reversed because

of cumulative error in the trial process. The only error we have

18
found in this case is the admission of the prior acts evidence.

Accordingly, Ray's arguments of cumulative error are without merit.
We note that although Ray was charged in the second amended
information with one count of tampering with witnesses, this count

was not tried before the jury and we cannot find any indication in

the record as to the resolution of that count.

REVERSED AND REMANDED.

We Concur: A

Justices

19
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's conclusion that the District
Court abused its discretion when it admitted evidence of
defendant's conduct which occurred 16 to 18 years prior to trial.
I also concur that based on that error alone, defendant is entitled
to a new trial.
However, I dissent from the majority's conclusion that there
was sufficient evidence of conduct by defendant to support his
conviction for solicitation in the State of Montana. Defendant
committed no crimes in Montana. However, the majority opinion
stretches the law regarding solicitation beyond recognition to
facilitate defendant's trial in Montana for crimes committed in the
State of Idaho. The charges brought against defendant in the
District Court of the Fourth Judicial District should have been
dismissed and charges for defendant's actual offenses should have
been filed in Idaho, where those offenses occurred.
The majority opinion states that because defendant made
promises to his victims in Montana that he would do things for them
in Washington, he thereby facilitated the commission of sexual
assault involving those victims in the State of Idaho. However,
even conceding that Montana's solicitation statute found at
§ 45-4-101, MCA, is the broadest such statute in the country, and
that it includes language which has nothing to do with
solicitation, as that term is commonly understood, there is still

20
no proof of any unlawful conduct on the part of defendant which was
committed in Montana.

In Stutev.Bush (1981), 195 Mont. 475, 479, 636 P.2d 849, 852,

we held that:

"Facilitate" is a commonly understood word. Its
definition according to Webster's Third New International
Dictionary is 'to make easier or less difficult: free
from difficulty or impediment.* In all cases, the actor
must have the purpose of promoting the commission of an
offense.
In this case, the majority's theory is that because defendant

made promises to his victims in Montana that he would perform

favors for them in Washington, those promises "facilitated" the

commission of sexual assault on his victims in Idaho. However,
there is no support for that conclusion in the record before the

trial court.
J.E. testified that she did not know if the things defendant

purchased for her in Washington were a reward for traveling with

him. She testified that she traveled with defendant because some

of her friends did so and she wanted to go along with them.

Similarly, she testified that she hung around defendant's shop

because it was fun to do so. Finally, she testified that she

received gifts from defendant whether she went to Spokane or not,

and that other families were given gifts, even though none of their

children went to Spokane. She established no relationship between

the promises, which the majority concludes are the basis of

defendant's offense, and trips to Spokane.

21
 Likewise, A.D., defendant's second alleged victim, did not
testify that she traveled to Spokane with defendant because of any
promises made by him to her or anyone else. She testified that she
went to Spokane with defendant "because my family thought he was
really nice and so did I."
There was absolutely no other testimony given by either of
defendant's alleged victims which connected any of his conduct in
Montana to the crimes he is accused of committing in Idaho.
When the majority opinion is distilled to its essence, it is
that Montana's statute prohibiting solicitation is so broad and
all-encompassing that a defendant can be tried and convicted of a
felony in Montana punishable by up to 20 years in prison and a
$50,000 fine for being "really nice." Surely, any statute that can
be so construed lacks sufficient specificity to give fair notice of
the conduct which is prohibited and will lead, as it did in this
case, to arbitrary and discriminatory arrests. Such a statute is
unconstitutionally vague and violates the due process clause of the
Fourteenth Amendment to the United State Constitution. See Grayned

v.CilyofRoc~ord (1972), 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d

222.

In this case, defendant was tried, convicted, and sentenced
based purely on acts he is accused of committing in the States of
Idaho and Washington. Montana's solicitation statute was merely a

subterfuge to enable this State to punish defendant for conduct
over which it had no jurisdiction. While the allegations made

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against defendant suggest conduct that was reprehensible, the
appropriate place to charge, try, and punish defendant is the state
where that conduct occurred--not Montana.

/ J &ice

Justice William E. Hunt, Sr., joins in the foregoing concurrence
and dissent.

f

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