State v. Black

No. 94-253
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
PAUL ORAN BLACK,
Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Dennis G. Loveless, Attorney at Law,
Helena. Montana

For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg W. Coughlin, Ass't Attorney General,
Helena, Montana
Mike McGrath, Lewis and Clark County Attorney,
Helena, Montana
Justice Karla M. Gray delivered the Opinion of the Court.
Paul Oran Black (Black) appeals from his conviction by the

First Judicial District Court, Lewis and Clark County, of the

offense of sexual assault, a felony. We conclude that the District

Court did not err in convicting Black of an offense with which he

was not specifically charged, that the evidence is sufficient to

support the conviction, and that Black was afforded effective

assistance of counsel. Therefore, we affirm.

In 1987, Black rented a portion of the shop in which Gary
Russell operated an automotive repair business in Helena, Montana;

the shop was immediately adjacent to Russell's residence.

Russell's ten-year-old son, G.R., became acquainted with Black when

he visited his father in the shop. G.R. testified that Black gave

him several gifts and would grab his buttocks while he was in the

shop.

While on a fishing outing with G.R. at Ten Mile Creek, Black

pulled down his pants and masturbated in front of G.R. He asked

G.R. to expose his penis and, after initially refusing, G.R. did

so; Black neither touched G.R. nor asked G.R. to touch him.

During two subsequent outings to Ten Mile Creek, Black told

G.R. to pull down his pants and get on his knees; according to

G.R., Black then entered him from behind. G.R. also testified to

another "entering from behind" incident which occurred at Black's

house and was interrupted when Russell arrived with a vehicle he
had been repairing.

G.R. testified that he experienced extreme pain during these

2
incidents and bled after each. After each incident, Black said

that what they had done was "perfectly natural" and told G.R. not

to tell anyone. G.R. testified that he felt threatened by Black.

G.R. did not reveal the incidents to anyone until he suddenly

remembered them in September of 1993.

The State of Montana (State) charged Black with sexual

intercourse without consent, in violation of 5 45-5-503, MCA.

Through his counsel, Black notified the State of his intent to rely

on an alibi defense. The case was tried to the District Court

sitting without a jury.

The court acquitted Black of the charged offense, finding the

evidence insufficient to establish beyond a reasonable doubt that

Black actually penetrated G.R.'s anus. It found him guilty,

however, of felony sexual assault in violation of 5 45-5-502, MCA.
Black was sentenced to fifteen years' imprisonment, with five years

suspended upon certain conditions. Black appealed. Subsequent

events are not at issue in this case.

1. Did the District Court err in convicting Black of
sexual assault?

Black advances three fundamental challenges to his conviction

of the offense of sexual assault. First, he argues that the

District Court was without authority to convict him of an offense

with which he was not charged. Second, he asserts that the

charging document was insufficient to serve as the basis for a

conviction of the offense of sexual assault. Finally, he contends

that his constitutional due process rights were violated by the
conviction for sexual assault.

3
 We note at the outset that the issue of whether sexual assault
is a lesser included offense of sexual intercourse without consent
is not before us in this case. Black did not raise the issue in
the District Court. Moreover, while he makes a passing reference
to the existence of the issue in his opening brief on appeal, that
brief contains neither argument nor legal authority relating to the
issue, as required by Rule 23(a) (4), M.R.App.P. Indeed, the
entirety of Black's argument in his opening brief relating to the
court's authority to convict him of an uncharged offense is
premised upon sexual assault being a lesser included offense of
sexual intercourse without consent. It is only in his reply brief
that Black argues that sexual assault is not a lesser included
offense of sexual intercourse without consent. Furthermore, unlike
cases such as State v. Voegele (lPPO), 243 Mont. 222, 793 P.2d 832,
the parties to this case have not raised or argued the plain error
doctrine, in either its statutory or judicially-created form,
insofar as that doctrine might provide a basis for our
consideration of the issue. Under these circumstances, that issue
is not properly before us and we specifically do not address it
here. Instead, we assume for purposes of this opinion that sexual
assault is a lesser included offense of sexual intercourse without
consent.
a . Was the District Court authorized to convict Black of
the lesser included offense of sexual assault?
Section 46-16-607(l), MCA, provides in pertinent part that a
"defendant may be found guilty of an offense necessarily included
in the offense charged . . . .I' The language of the statute is so
4
plain as to need no interpretation. See Curtis v. Dist. Court of

21st Jud. Dist. (Mont. 1994), 879 P.2d 1164, 1166, 51 St.Rep. 776,

778 (citation omitted). Because we assume for purposes of this

case that sexual assault is a lesser included offense of sexual

intercourse without consent, the statute provides clear and express
authority for Black's conviction of the offense of sexual assault.

Black relies on § 46-16-607(2), MCA, and the 1991 Commission

Comment to the statute in making a circuitous argument regarding

when lesser included offense instructions may, may not and must be

given and how those issues relate to this case. Little discussion

of this argument is necessary.

We note first that, by its terms, 5 46-16-607(2), MCA, relates

only to jury trials. Questions relating to instructing the jury

simply do not arise in bench trials. Thus, § 46-16-607(2), MCA, is

inapplicable here.
For the same reason, the Commission Comment stating in part

that "[t]his statute is a newly developed provision intended to

regulate a jury's consideration of lesser included offenses" also

is inapplicable to this case involving a trial to the court. In

addition, we note that the portion of the Comment on which Black

relies--allowing a lesser included instruction "only upon a party's

request" and when warranted by the evidence--appears to vary the

terms of 5 46-16-607(2), MCA, which provides that a lesser included

offense instruction must be given upon a party's request when
sufficient evidence supports the instruction.

Black also argues that State v. Sheppard (1992), 253 Mont.

5
118, 832 P.2d 370, supports his position. Like § 46-16-607(2),

MCA, Sheooard is inapplicable to this appeal from a bench trial
because it addresses only questions relating to a trial court's

responsibilities in instructing a jury on lesser included offenses.

Those responsibilities are not relevant where the trial court is

deciding questions of both law and fact pursuant to §§ 46-16-103

and 46-16-110(3), MCA, and, as a result, no instructions are given.

We conclude that 5 46-16-607(l), MCA, authorizes the

conviction of a criminal defendant for a lesser included offense.

Under the circumstances of this case, therefore, we hold that the

District Court was authorized to convict Black of the offense of

sexual assault.

b. Did the charging document provide a sufficient basis
for a conviction of the offense of sexual assault?

Black asserts that the information charging him with the

offense of sexual intercourse without consent did not provide him

with notice sufficient to enable him to prepare his defense to the

uncharged offense of sexual assault. His argument is not

persuasive.

Section 46-11-401, MCA, sets forth the requirements which must

be contained in the charging document. Here, the information

charging Black with sexual intercourse without consent meets the

statutory requirements; Black does not contend otherwise. He
argues that he could not be convicted of the offense of sexual

assault because that charge was not specifically included in the
information and, as a result, he did not have sufficient notice of

the possibility of a conviction of that offense.

6
 As discussed above, § '46-16-607(l), MCA, unambiguously and
expressly authorizes a defendant's conviction of an offense
included in the charged offense. The statute itself provides the
notice that a conviction for a lesser included offense is
possible. Because we assume for purposes of this case that sexual
assault is a lesser included offense of sexual intercourse without
consent, Black had notice via the information and § 46-16-607(l),
MCA, that he could be convicted of the lesser included offense.
While we have not previously addressed the precise issue of
notice vis-a-vis § 46-16-607(l), MCA, the California Supreme Court
did so succinctly in People v. Lohbauer (Cal. 1981), 173 Cal.Rptr.
453. There, the California court determined that the requisite
notice is afforded where an offense is necessarily included within
the statutory definition of the charged offense and a conviction of
the included offense is statutorily authorized. Lohbauer, 173
Cal.Rptr. at 454.
Nor do the Montana cases on which Black relies 'support his
position. State v. Kills on Top (1990), 243 Mont. 56, 71, 793 P.2d
1273, 1283, State v. Matson (1987), 227 Mont. 36, 43, 736 P.Zd 971,
975, and State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d
436, 438, all state the general rules regarding the necessity of
reasonably apprising the accused of the charges against him in the
information so that a person of common understanding would know
what offense is being charged. None of those cases involved the
issue now before us regarding notice of lesser included offenses
vis-a-vis § 46-16-607(l), MCA.

7
 Black also advances arguments, as he did in challenging the

District Court's authority to convict him of the lesser included

offense, premised on cases involving a trial court's jury
instructions on lesser included offenses. Here too, as above,

those cases are inapplicable to this case which was tried to the

District Court sitting without a jury.

Finally, Black argues that "the main case on point" is State

v. Copenhaver (19071, 35 Mont. 342, 89 P. 61. He urges that our

statements in Cooenhaver, 89 P. at 62, that "the defendant was

charged with one crime and convicted of another. The judgment must

therefore be reversed . . .I' are equally applicable here. His

reliance on Conenhaver is misplaced.

In Copenhaver, the defendant was charged with burglary in the

nighttime or, as defined by statute, burglary in the first degree;

he was convicted of burglary in the daytime, or burglary in the

second degree. We reversed on appeal, concluding that burglary in

the nighttime clearly did not "include" burglary in the daytime.

Cooenhaver, 89 P. at 62. Thus, unlike the present case, Cooenhaver

did not involve a conviction of a lesser included offense; it

involved a conviction of a separate, independent offense which was

not a lesser included offense. Indeed, we specifically noted in

Copenhaver that § 2147 of the Penal Code--a predecessor to 5 4616-

607 (1) , MCA--would have authorized a conviction for an offense

included in the charged offense. Copenhaver, 89 P. at 62.

The information charged Black with sexual intercourse without

consent. For purposes of this case, we assume that sexual assault

8
is a lesser included offense of sexual intercourse without consent.
Section 46-16-607(l), MCA, expressly authorizes a conviction for an
offense included in the charged offense. For these reasbns, we
conclude that the charging document provided a sufficient basis for
Black's conviction of the offense of sexual assault.
C. Did the conviction of the offense of sexual assault
violate Black's constitutional right to due process?
Black's due process arguments are premised on his assertion
that he did not have notice of the offense of which he ultimately
was convicted. We have concluded to the contrary based on the
statute. Black had notice of the possibility of a conviction of
sexual assault pursuant to 5 46-16-607(l), MCA, which specifically
authorizes a conviction for an offense included in the charged
offense. Little more need be said.
Both the Montana Constitution, Article II, § 24, and the Sixth
Amendment to the United States Constitution guarantee accused
defendants certain due process, including the right to be informed
of the nature and cause of the accusation. Relying on State v.
Barker (19931, 260 Mont. 85, 858 P.2d 360, Black argues that his
conviction of the offense of sexual assault violated his due
process rights.
In Barker, we concluded that a justice court conviction for
reckless driving after a charge of driving under the influence of
alcohol violated due process. Barker, 858 P.2d at 362. We stated
that it is elementary that a party cannot be charged with one
offense and "convicted of another independent offense." Barker,
858 P.2d at 362 (citation omitted). The quoted language
9
establishes the distinguishing factor between Barker and the

present case: Barker involved two independent offenses. Indeed, we
specifically stated therein that "reckless driving is not a lesser

included offense of driving under the influence" and, on that
basis, concluded that Barker could not be convicted of an offense

"independent" from that charged. Barker, 858 P.2d at 362. Barker
has no application here.

Like the California court in Lohbauer, we conclude that the

notice required by the constitutional guarantee of due process is
afforded where an offense in included within the charged offense

and a conviction of the included offense is authorized by statute.

We hold that Black's due process rights were not violated, under

the circumstances of this case, by his conviction of the offense of

sexual assault.

2. Does sufficient evidence support Black's conviction
of the offense of sexual assault?

Our standard in reviewing the sufficiency of evidence in

criminal cases is whether, after viewing 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. State v. Licht (Mont. 1994), 879 P.2d 670, 675, 51 St.Rep.

686, 689 (citation omitted).

Black does not dispute that G.R. 's testimony establishes the

elements of sexual assault as that offense is statutorily defined.

Moreover, the law is clear in Montana that a victim's testimony in

a sex offense case is sufficient to sustain a conviction and needs

no corroboration. State v. Biehle (1992), 251 Mont. 257, 260, 824

10
P.2d 268, 270-71.

Black argues that, in rejecting G.R.'s testimony regarding the

extent of the actual sexual intercourse or penetration, the

District Court determined that G.R. was not a credible witness.

With that purported determination as a base, Black contends that

adding discrepancies in G.R.'s testimony and that of others

testifying compels a determination that G.R.'s testimony was

incredible in its entirety and, therefore, insufficient to support

the conviction.

Black cites no authority for his position. In addition, he

apparently overlooks the District Court's specific determination

that "G.R. was a credible witness." As we have stated,

[a] trial court acting as a finder of fact is in the best
position to observe the witnesses, including their
demeanor and credibility. . . . The weight of the
evidence and the credibility of the witnesses are
exclusively the province of the trier of fact . . . .

State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94

(citation omitted).
The court's credibility determination and the weight it gave

G.R.'s testimony were exclusively within its province as the trier

of fact in this case; the same is true regarding the court's

weighing of all the evidence before it, including discrepancies in

testimony. We will not substitute our judgment for that of the

trier of fact on matters of credibility and the weight of evidence.

We hold, therefore, that sufficient evidence supports Black's

conviction of the offense of sexual assault.

3. Was Black afforded effective assistance of counsel?

11
 This Court has adopted the two-prong test set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674, for determining whether counsel was ineffective.
State v. Mahoney (Mont. 1994), 870 P.2d 65, 72-73, 51 St.Rep. 160,
164. Under the first prong of that test, a defendant must show
that counsel's performance was deficient by demonstrating that
counsel was not functioning as the "counsel" guaranteed by the
Sixth Amendment to the United States Constitution; under the second

prong, a defendant must show that counsel's deficient performance
so prejudiced him that he was deprived of the right to a fair
trial. Mahonev, 870 P.2d at 72-73.
Black's contention that he did not receive effective
assistance of counsel is premised on two alleged deficiencies.
Black relies first on State v. Denny (1993), 262 Mont. 248, 865
P.2d 226, in arguing that counsel's failure to interview witnesses
who would have supported his alibi defense constituted deficient
performance. In this regard, we note that the alleged failure to
interview helpful witnesses cannot be either established or
disproved on the record before us; as a result, that allegation of
ineffective assistance of counsel cannot be addressed in this
direct appeal from Black's conviction.
Black also argues that counsel failed to follow up on
discrepancies in the testimony of the State's witnesses. Here, we
need consider only the first prong of the Strickland test to
conclude that Black has not met his burden of establishing
ineffective assistance of counsel. The record before us

12
establishes that counsel cross-examined each of the State's
witnesses. The cross-examinations tested the witnesses' memory of
events occurring some six years earlier and attempted to cast doubt
on the witnesses' recollections and credibility. Black cites no
authority in support of his general and conclusory allegation that
more, or different, cross-examination was required.
A strong presumption exists that counsel's conduct falls
within the wide range of reasonable professional assistance.
Dennv, 865 P.2d at 228-29; citing Nealy v. Cabana (5th Cir. 1985),
764 F.2d 1173, 1177-1178. Black's conclusory allegations do not
begin to establish that counsel's performance was not reasonable
under prevailing professional norms. D e n n y , 865 P.2d at 228;
See
citing Lawrence v. Armontrout (8th Cir. lYYO), 900 F.2d 127, 129
(citation omitted). We conclude that Black has not met the first
prong of the Strickland test by demonstrating record-based
deficient performance by counsel and, to that extent, we hold that
he was afforded effective assistance of counsel.
Affirmed.

We concur:

Justices
13
Justice W. William Leaphart, dissenting.

I dissent for the reason that I find the Court's reasoning
offends due process of law. The majority points out that the
question of whether sexual assault is a lesser included offense of
sexual intercourse without consent has not been addressed by this
Court. The Court takes the position that the issue is not properly
before the Court because Black did not raise this issue in his
opening brief. As it has done on four previous occasions, the
Court then declines to rule on that question but assumes, for
purposes of this decision, that sexual assault is a lesser included
offense of sexual intercourse without consent. State v. Sheppard
(Mont. 1995), ____ P.2d __, 52 St.Rep. 106; State v. Ogle (1992),
255 Mont. 246, 841 P.2d 1133; State v. Sheppard (1992), 253 Mont.
118, 831 P.2d 370; State v. Lundblade (1986), 221 Mont. 185, 717
P.2d 575. Based upon that assumption, the Court then determines
that the District Court was within the law and the constitution
when it found Black guilty of sexual assault even though Black was
charged only with sexual intercourse without consent. A criminal
conviction cannot be based upon an assumption of such a fundamental
legal proposition.
The majority concedes that the question of lesser included
offense has not been addressed. Nonetheless, it is willing to
affirm the conviction based upon an assumption that the crime of
which Black was convicted (sexual assault) is a lesser included
offense of the crime with which he was charged (sexual intercourse
14
without consent). Since the question is admittedly an open

question, let us assume the opposite--that sexual assault is not a

lesser included offense. Then, of course, Black stands convicted

of an offense for which he was given no notice. The Information
does not charge Black with sexual assault. Black would have had no

reason to believe that he was even at risk of being convicted of

sexual assault until such time as the court rendered its final

judgment. Without advance knowledge of what the charge is, the

accused is unable to exercise any meaningful decisions about his

defense: what witnesses (if any) to call, whether he will take the

stand himself, whether he will seek a bench trial or a jury trial--

just to name a few of the more obvious and basic decisions

confronting a person accused of a crime.

Due process of law requires, at a minimum, that a defendant be

reasonably apprised of the charges against him in the charging

document in such a manner that a person of common understanding

would know what offense is being charged. State v. Kills On Top

(1990), 243 Mont. 56, 71, 793 P.2d 1273, 1283. In State v. Barker

(1993), 260 Mont. 85, 89, 858 P.2d 360, 362, we held that it is

"elementary" that a party cannot be charged with one offense and

convicted of another independent offense. In my opinion, this

Court cannot circumvent such a fundamental and "elementary" legal

proposition by resorting to an assumption that sexual assault is a

lesser included offense merely because Black's counsel has failed

to raise the issue in his opening brief. Black's counsel did

contend, in his Issue number two, that Black was convicted of an

15
offense of which he was not charged. In its Answer brief, the
State countered that sexual assault is a lesser included offense of
sexual intercourse without consent and, as such, notice of the
lesser included offense is included within the charge of the
greater offense. Black, in his Reply brief, argued that sexual
assault is not a lesser included offense. Thus, although the issue
could have been more artfully raised and addressed, the parties did
discuss and brief the issue. Given the fundamental and elementary
nature of the issue--if the trial court were incorrect in assuming
that sexual assault is a lesser included offense--that assumption
amounts to plain error which this Court should address regardless
of whether defense counsel raised the issue in a proper manner. In
State v. Voegele (1990), 243 Mont. 222, 224, 793 P.2d 832, 834,
this Court held that:
"[wlhen 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." State v.
Wilkins (1987), 229 Mont. 78, 80-81, 746 P.2d 588, 589.
This discretionary review under the plain error doctrine
provides a remedy to prevent manifest injustice and will
only be used in exceptional cases.
In addressing the power of an appellate court to raise, sua
sponte, and determine issues which were not raised either in the
trial court or by any of the parties on the appeal, the Kansas
Supreme Court has stated:
The conclusion which we have reached from these cases is
that, although ordinarily an appellate court will not
consider an issue which has not been raised in the trial
court or which has not been raised by the parties on
appeal, the court does have the power to do so in
exceptional circumstances, where considerations of the
new issue is necessary to serve the ends of justice or to
16
 prevent a denial of fundamental rights.

State v. Puckett (Kan. 1982), 640 P.2d 1198, 1201.

It is axiomatic that the right to be put on notice of the

crime you are being charged with is a fundamental as well as a

"substantial" right. If we assume that the District Court was

incorrect in its assumption, this is one of those "exceptional"

cases in which the Court must invoke the doctrine of plain error in

order to prevent manifest injustice; the manifest injustice being

that Black is deemed to have been put on notice of the crime of

sexual assault by virtue of having been charged with sexual

intercourse without consent. This result is reached via an

assumption (rather than a legal conclusion) that sexual assault is

a lesser included offense of sexual intercourse without consent.

This assumption flies in the face of the notice requirement of the

guarantee of due process. Either sexual assault is a lesser

included offense or it is not. If it is, then under the law, Black

is deemed to have been put on notice of that offense when he was

charged with sexual intercourse without consent. If it is not,

then Black was not put on notice of the crime of which he was

ultimately convicted and his conviction cannot stand.

For the above-stated reasons, I dissent from the Court's

decision to affirm a conviction based upon a mere assumption that

sexual assault is a lesser included offense of sexual intercourse

without consent.

lLiiGhi&~ Justice

17
 Justice Terry N. Trieweiler and Justice William E. Hunt, Sr.,
join in the foregoing dissent of Justice w. William Leaphart.

ustice

Justice