NO. 94-088
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. B. Wheatcroft, Miles City, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Kathy
Seeley, Assistant Attorney General; Garry B. Bunke,
Custer County Attorney, Miles City, Montana
Submitted on Briefs: January 12, 1995
Decided: February 8, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a jury verdict finding defendant guilty
of Sexual Intercourse Without Consent and from the attendant
sentence imposed by the Sixteenth Judicial District Court, Custer
County. We reverse and remand for a new trial.
We consider one issue as dispositive of this case:
Did the District Court err in failing to instruct the jury
correctly on the applicable law of the case?
In January of 1988, Robert Stacy Bradley (Bradley) lived in a
rooming house in Seattle, Washington. The rooming house was owned
by his then current mother-in-law. Bradley was in the process of
divorcing his third wife, Angel, and had responsibility for his
young daughter, Amber, from his second marriage.
While staying at the rooming house, Bradley met Sherri
Hutchins (Sherri) and her brother, Floyd, in the spring of 1988.
Sherri, 14, and Floyd, 15, had been abandoned by their mother when
she left them in the rooming house and subsequently disappeared.
In the spring of 1988, Bradley, Sherri, Floyd, and Amber moved
into an apartment where Sherri, 14, and Bradley, 29, became lovers.
Sherri, Bradley, Floyd and Amber moved from Washington to Tennessee
in July of 1988 because Bradley's family resided in that state.
During the stay in Tennessee, Sherri became pregnant, but
miscarried. Bradley testified that he did not know until the
couple went to Tennessee that Sherri was so young. By that time,
he stated, he felt he should do the "right thing" and marry her.
Because Sherri was underage, the couple sought and found Sherri's
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mother in the hope that she‘would sign for them to be married.
In June of 1989, the couple and Amber moved to Miles City,
Montana, where Sherry's mother lived. Shortly after arriving in
Montana, Sherry became pregnant a second time and the couple wed on
February 20, 1990, five days past Sherri's sixteenth birthday.
Sherri was seven months pregnant. She gave birth on April 3, 1990.
On April 3, 1991, Sherri gave birth to the couple's second
child. The couple moved around from Montana to California and
while living in Washington State, the couple separated in December
of 1991. During this time, Bradley obtained a restraining order
for Sherri and she was unable to see her children for approximately
eight months.
Bradley returned to Miles City and by August of 1992, Sherri
had moved back to Miles City to live with Bradley and the children.
In September of 1992, Sherri initiated contact with the Department
of Family Services (DFS) to have the children removed from the
home. Following an investigation, the DFS removed Sherri and the
children to a shelter in Billings.
Law enforcement questioned Bradley in December of 1992 and on
December 31, 1992, Bradley was charged by information with the
offenses of Bigamy, a misdemeanor; False Swearing, a misdemeanor;
and Sexual Intercourse Without Consent, a felony. At the time the
information was filed, Sherri was pregnant with the couple's third
child.
Bradley moved to have the charges dropped based upon the
spousal exemption in 5 45-5-511, MCA (1989). The State countered
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that Bradley was not divorced from his third wife until February of
1992, two years after the actual marriage to Sherri, and he could
not avail himself of the spousal exemption.
The State did move to dismiss the Bigamy and False Swearing
charges because they had not been initiated within the one-year
statute of limitations for misdemeanors. A jury trial was held on
June 3, 1993, on the charge of Sexual Intercourse Without Consent
because Sherri had been 15 years old when the couple came to Miles
City the first time in 1989. A jury found Bradley guilty and the
court after considerable delay sentenced Bradley on January 7, 1994
to fifteen years in the Montana State Prison, with all but thirty
days suspended. The sentence also contained a litany of conditions
such as therapy for Bradley's host of emotional problems and
registration in a sexual offender program. The court also reserved
the right to restrict defendant's parole upon resentencing after a
violation of his probation terms.
Bradley appeals the District Court's denial of his Motion to
Dismiss, Motion for Directed Verdict, the refusal of defendant's
jury instructions, the jury verdict and the sentencing order.
Did the District Court err in failing to instruct the jury
correctly on the applicable law of the case?
Bradley argues that the court did not instruct the jury on the
correct law of the case. Specifically, the court refused his
instructions based on § 45-5-511, MCA (1989), which contained a
spousal exemption for sexual intercourse without consent. Bradley
contends that his instructions 7, 11, 13, and 14 should have been
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given. The State argues that the above referenced instructions did
not accurately reflect the law or the evidence presented in the
case.
Instructions must be reviewed as a whole and if they fully and
fairly present the law to the jury, the jury has been properly
instructed. State v. Hall (1990), 244 Mont. 161, 172, 797 P.2d
183, 190. To constitute reversible error, the trial court's
actions must affect substantial rights of the party. Davis v.
Church of the Latter Day Saints (19901, 244 Mont. 61, 796 P.2d 181.
First, we note that Bradley's instruction #14 is a general
instruction with little relevance to the case. It is taken from a
general treatise and is not based upon Montana law. The District
Court did not err in excluding it as it is not germane to the
resolution of the issues.
Bradley's instruction #?, which was refused by the District
Court stated:
To convict the defendant of sexual intercourse without
consent, the State must prove the following elements:
First: That the defendant knowingly has [had ?I sexual
intercourse with Sherri Lynn Bradley; and
Second: That Sherri Lynn Bradley wae not the defendant's
spouse; and
Third: That the act of sexual intercourse was without
the consent of Sherri Lynn Bradley. . . . (Emphasis
added.)
Instead of the above instruction, the court gave the State>s
instruction #6:
To convict the defendant of sexual intercourse without
consent, the State must prove the following elements:
1. That the defendant had sexual intercourse with
Sherry Bradley; and
2. That the act of sexual intercourse was without the
consent of Sherry Bradley; and
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3. That the defendant acted knowingly. .
Neither instruction is 100% correct. But the State's instruction
does not reflect the complete law. The court erred in giving the
instruction as it is misleading and acted to prejudice Bradley by
not giving the appropriate law upon which he must be judged.
The statute at issue is 5 45-5-503, MCA. That statute in 1983
read:
Sexual intercourse without consent. (1) A person who
knowingly has sexual intercourse without consent with a
person of the opposite sex, not his soouse, commits the
offense of sexual intercourse without consent. (Emphasis
added.)
In 1985, the legislature removed the phrase "not his spouse" from
subsection one. However, at the same time, they added a new
sentence to subsection one which remained unchanged through 1989.
The 1989 version of that statute reads:
Sexual intercourse without consent. (1) A person who
knowingly has sexual intercourse without consent with a
person of the opposite sex commits the offense of sexual
intercourse without consent. A person may not be
convicted under this section based on the ace of his
soouse as provided in 45-5-501(2)(c). (Emphasis added.)
Bradley argues that he was found guilty because the court did not
instruct the jury properly by including the second sentence of
subsection one in the instructions. We agree with that point of
view.
Likewise, the jury should have been instructed that the law
contained the further exemptions found in § 45-5-511, MCA (1989) :
Provisions generally applicable to sexual crimes. (1)
When criminality depends on the victim being less than 16
years old, it is a defense for the offender to prove that
he reasonably believed the child to be above that age.
Such belief shall not be deemed reasonable if the child
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is less than 14 years old.
(2) Whenever the definition of an offense excludes
conduct with a spouse the exclusion shall be deemed to
extend to persons livinq as husband and wife reqardless
of the leqal status of their relationshiD. . .
(Emphasis added.)
The court instructed the jury on subsection one only by giving the
State's instruction #9 but refused Bradley's instruction #13 which
contained subsection two. Again, neither instruction is correct as
it is written. An instruction which properly presents the law to
the jury would contain both subsections of this 1989 statute. The
question of whether Sherri and Bradley were "living as husband and
wife" in July of 1989 is a question of fact for the jury to
determine.
Because the court prejudiced Bradley by instructing the jury
on an incomplete version of the appropriate law, this case must be
reversed and remanded for a new trial.
Reversed and remanded
We Concur:
1 Chief Justice
February 8, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
J.B. Wheatcroft
Attorney at Law
P.O. Box 1081
Miles City, MT 59301
HON. JOSEPH P. MAZUREK, Attorney General
, Assistant
Jutice Bldg.
Helena. MT 59620
Gamy B. Bunke
Custer County Attorney
1010 Main
Miles City, MT 59301
ED SMITH
CLERK OF THE SUPREME COURT
STATF!jQF MONTANA