State v. McQuiston

NO. 95-216
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,
v.
LESLIE McQUISTON,
Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank Davis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
William F. Hooks, State Appellate Defender,
(argued) Helena, Montana

For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Ass't Attorney General,
(argued) Helena Montana
Thomas R. Scott, County Attorney, Dillon, Montana

Heard: May 14, 1996
Submitted: May 31, 1996
Decided: August 6, 1996
Filed:
Justice Charles E. Erdmann delivered the Opinion of the Court.

Appellant Leslie McQuiston appeals from the judgment and

sentence entered by the Fifth Judicial District Court, Beaverhead

County, convicting him of sexual intercourse without consent and

incest. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in allowing testimony

regarding other acts committed by McQuiston?
2. Do McQuiston's convictions for sexual intercourse without

consent and incest violate double jeopardy protections?
3. Did the District Court err in sentencing McQuiston?

FACTS

In February 1989, Heidi McQuiston (Heidi) was nineteen years

old. She lived in a mobile home in Dillon with her two children,

her natural mother, Jackie Jenkins (Jackie), her brother and her

adoptive father, Leslie McQuiston (McQuiston).

Heidi testified that on or about February 10, 1989, McQuiston

came into the kitchen where she was standing and asked her to go to

his bedroom because he needed to talk to her. Neither her mother

nor her brother were home. Heidi followed McQuiston into the

bedroom where he shut the door behind her. McQuiston then told

Heidi to take her clothes off and told her he would beat her if she

refused. Heidi took her clothes off and McQuiston told her to get

on the bed. He then disrobed himself and engaged in sexual

intercourse with her.
 On January 3, 1994, McQuiston was charged by Information in
the Fifth Judicial District Court, Beaverhead County, with one

count of sexual intercourse without consent, a felony, pursuant to

§ 45-5-503, MCA, and in the alternative, with one count of incest,

a felony, pursuant to § 45-5-507, MCA. In a supporting affidavit,

the County Attorney stated that Heidi had given birth to three
children and that McQuiston was the putative father of all three.

Results of paternity tests indicated over a ninety-nine percent

probability that McQuiston was the father of Heidi's three

children.

McQuiston moved to dismiss the charge of sexual intercourse

without consent claiming that only the incest statute applied to
him. The District Court denied the motion and the State then filed

an amended Information indicating that the charges of sexual

intercourse without consent and incest were charged separately and

independently, not alternatively.

A jury trial was conducted on October 6 and 7, 1994. After

Heidi testified about the specific incident for which McQuiston was

charged, a sidebar discussion took place off the record. The

District Court then admonished the jury that the testimony they

were about to receive concerned other acts by the defendant and

that the evidence was not being admitted to prove the character of

the defendant. The court told the jurors that McQuiston was not

being tried for other crimes, wrongs, or acts and that they were to

consider the testimony for limited purposes.

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 After the court admonished the jury, Heidi testified that the
February 10, 1989, incident was not the first time that McQuiston

had had sexual intercourse with her. She testified that McQuiston

had begun sexual advances toward her when she was nine years old.

Heidi stated that when she reached the age of fourteen she

discovered through movies shown at health class that what her

father was doing to her was not normal. Thereafter she began to

resist McQuiston's advances, but when she resisted her father, she

was beaten.
Heidi testified that she was beaten so many times for

resisting McQuiston that she could not remember them all and she

could not estimate how many incidents of sexual intercourse had

occurred. She also testified there were times when her father

would beat her and then proceed to have sex with her. The

incidents of intercourse occurred about two or three times a week,

but gradually decreased to the point that in February, 1989,

McQuiston was having sex with Heidi approximately once a week. The

February 10, 1989, incident was the last time Heidi had sexual

contact with her father.

On Heidi's cross-examination, defense counsel asked her

specific questions about the beatings and elicited testimony

concerning an incident in Salem, Oregon, in the early 1980s when

McQuiston had hit Heidi for calling him a pig. Heidi's mother

confirmed the Oregon beating. When Jackie was asked by the State

to describe the facts surrounding the beating, she said that when

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Heidi brought McQuiston a cup of coffee he belched and she called
him a pig. Jackie testified that McQuiston "went crazy" and beat

Heidi. Defense counsel did not object to any of Jackie's testimony

concerning the Oregon beating. Jackie also testified that there
were at least twenty times when she returned home from work and

Heidi would have a black eye or a fat lip.

McQuiston testified that he had hit Heidi only twice and

denied any sexual contact between himself and Heidi. He stated

that he believed he had treated Heidi "like a daughter" and that

when he had hit her, it was "corrective." McQuiston testified that

he first discovered that Heidi was pregnant when he was released

from jail in Kalispell. He claimed that Heidi, Jackie, and her

brother had accused him of the crimes because they were jealous of

his current financial status. McQuiston testified that he was

remarried, had two children, had paid for his vehicles, made about

$65 a day and had money in his pocket. He testified on direct

examination that he was "way better off" than he had been when he

was married to Jackie.

On cross-examination, the County Attorney asked McQuiston

about an existing court-ordered restitution requirement in an

unrelated action. McQuiston testified that he had been ordered to

pay $10,100 in increments of $100 per month and admitted he had not

made any of the monthly payments for a year. When asked if he had

enough money to pay the restitution payments, he stated he did but

that he had spent the money on other items. Defense counsel did

5
not object to any of the testimony regarding the restitution
requirement and there was no evidence submitted as to the

underlying crime for which restitution had been ordered.
The jury found McQuiston guilty of sexual intercourse without

consent and incest. This appeal followed.

ISSUE 1

Did the District Court err in allowing testimony regarding

other acts committed by McQuiston?

McQuiston argues that the State exceeded the scope of its

pretrial notice regarding evidence of other acts which it intended
to introduce at trial. McQuiston contends that when the State

offered evidence concerning the Oregon beating incident and the

restitution requirement, it exceeded the scope of its intended use

of alleged other acts. McQuiston argues that these two past acts

were unrelated to the crime for which he was charged and that the

prejudicial impact of admitting them far outweighed any probative

value they may have had. Furthermore, McQuiston relies on State v.

Matt (19911, 249 Mont. 136, 814 P.Zd 52, and State v. Just (1979),

184 Mont. 262, 602 P.2d 957, to argue that the District Court did

not properly admonish the jury prior to admitting the evidence.
The State argues that the Oregon beating incident was properly

admitted as going to the resgestae of the rape and incest charges.

The State claims that even though the Oregon beating did not

involve sexual contact, it was sufficiently similar to the other

beatings that Heidi had received and therefore was properly

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admitted to show the long history of McQuiston's intimidation and
domination of Heidi. The State further notes that since the

testimony was initially elicited by defense counsel, no error

should be charged to the District Court or to the State for its

admission.

The State argues that the purpose of introducing the evidence

concerning the restitution requirement was to inquire into
McQuiston's financial status in an effort to rebut or impeach his

prior testimony that he was financially well off. The State

maintains that the District Court properly admonished the jury
before Heidi testified concerning the many years of prior abuse and

that the court was not required to admonish the jury again prior to

receiving testimony concerning the Oregon beating and the Kalispell

restitution order.

We have stated that district courts have broad discretion to

determine whether or not evidence is relevant and admissible, and

absent a showing of an abuse of discretion, the court's

determination will not be overturned. State v. Pace (1995), 272

Mont. 464, 467, 901 P.2d 557, 559 (citing State v. Keys (1993), 258

Mont. 311, 314, 852 P.2d 621, 623).

We first address the Oregon beating incident. In Cline v.

Durden (lPPO), 246 Mont. 154, 803 P.2d 1077, this Court held that

counsel, by inquiring into a Forest Service ranger's report for the

first time on cross-examination, opened the door for further

inquiry on redirect and effectively overcame his own objection to

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matters contained therein. Cline
-I 803 P.2d at 1081. Likewise, in
the present case McQuiston elicited the circumstances surrounding

the Oregon beating on Heidi's cross-examination and the matter was

only revisited by the State on its redirect examination of Heidi.

and its direct examination of Jackie. Thus, the District Court did

not err in admitting the evidence of the Oregon beating incident.

With respect to the evidence related to McQuiston's
restitution requirement, we determine that the testimony was

elicited by the State on cross-examination in an effort to impeach
McQuiston's prior testimony that he was financially well off.

McQuiston brought up his financial status on direct examination.

We have held that character evidence may be rebutted through

impeachment without Just procedures. & State v. Baker (1991),
249 Mont. 156, 159, 815 P.Zd 587, 589. The evidence introduced by

the State concerning McQuiston's outstanding restitution payments

was properly admitted to impeach his prior testimony.

Finally, we address the adequacy of the District Court's

admonition to the jury. The record indicates that prior to

accepting the evidence of other acts and prior to jury
deliberation, the District Court admonished the jury that the

evidence was not being admitted to prove the character of the

defendant in order to show he acted in conformity therewith. The

court stated that:

The only purpose of admitting this evidence is to show,
one, proof of lack of consent of the victim; two, proof
of motive of the Defendant to commit the crimes charged
herein; and three, proof of a common scheme or plan to

8
 commit the offenses charged herein; and four, proof of
identity of the Defendant. You may not use that evidence
for any other purpose.

This Court has previously held that Just does not require an

admonition each time prior acts evidence is received. State v.
Keefe (1988), 232 Mont. 258, 268, 759 P.2d 128, 134 (citing State

v. Tecca (1986), 220 Mont. 168, 174, 714 P.2d 136, 140). We

conclude that in this case, the District Court's admonition was

given prior to Heidi's description of the many years of sexual

abuse and beatings and that the court met the requirement of § 46-

16-401(1), MCA, which required it to give cautionary instructions
as required during the course of the trial.

In conclusion, we determine that the District Court did not

abuse its discretion or otherwise err in admitting evidence of

other acts, including the Oregon beating incident and McQuiston's

outstanding restitution payments.
ISSUE 2

Do McQuiston's convictions for sexual intercourse without

consent and incest violate double jeopardy protections?

McQuiston argues that the same conduct formed the "factual

predicate" for both offenses charged against him since both were

based on sexual intercourse between himself and Heidi. Thus,

McQuiston claims the District Court should have dismissed the

charge of sexual intercourse without consent.

we review conclusions of law to determine whether the district

court 's interpretation of the law was correct. State v.

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Christensen (1994), 265 Mont. 374, 374-75, 877 P.2d 468, 469. We
have recently stated that the Double Jeopardy Clause of the Fifth

Amendment of the United States Constitution protects against three

distinct abuses: (1) a second prosecution for the same offense

after acquittal; (2) a second prosecution for the same offense

after conviction; and (3) multiple punishments for the same

offense. State v. Nelson (Mont. 1996), 910 P.2d 247, 250, 53 St.

Rep. 50, 51. The Double Jeopardy Clause has been made applicable

to the states through the Fourteenth Amendment. Nelson, 910 P.2d
at 250 (citing Benton v. Maryland (1969), 395 U.S. 784, 89 S. Ct.

2056, 23 L. Ed. 2d 707; State v. Cole (19871, 226 Mont. 377, 744

P.2d 526).

McQuiston argues that his convictions of both sexual

intercourse without consent and incest constitute multiple

punishments for the same offense. This Court has employed the

"same elements” test set forth in Blockburger v. United States

(1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, to determine

whether a defendant can be charged and convicted of violating two

statutes for the same act or transaction. See State v. Crowder

(1991), 248 Mont. 169, 810 P.2d 299; State v. Wolfe (1991), 250

Mont. 400, 821 P.2d 339; State v. Clawson (1989), 239 Mont. 413,

781 P.2d 267; State v. Long (1986), 223 Mont. 502, 726 P.Zd 1364.
The Blockburqer test states:

The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether

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 each provision requires proof of a fact which the other
does not.

Blockburger, 284 U.S. at 304.

The Blockburqer test is a test of statutory construction to

determine whether the legislature intended the same conduct to be

punishable under two criminal provisions. Crowder, 810 P.2d at

305. The Blockburoer test focuses on the proof necessary to prove

the statutory elements of each offense, rather than on the actual

evidence to be presented at trial. Crowder, 810 P.2d at 305
(citing Illinois v. Vitale (1980), 447 U.S. 410, 416, 100 S. Ct.

2260, 2265, 65 L. Ed. 2d 228, 235). If each statute requires proof

of a fact that the other does not, the Blockburqer test is

satisfied, notwithstanding there may be a substantial overlap in

the proof offered to establish the crimes. Iannelli v. United

States (19751, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 1294, 43 L.

Ed. 2d 616, 627.

A comparison of the two statutes for which McQuiston was

convicted reveals separate and distinct elements for each crime.

Sexual intercourse without consent requires proof that a person

knowingly has sexual intercourse without consent with a person of

the opposite sex. Section 45-5-503, MCA (1987). Incest requires

proof that a person knowingly marries, cohabits with, has sexual

intercourse or sexual contact with an ancestor, a descendant, a

brother or sister, or any stepson or stepdaughter. Section

45-5-507, MCA (1987).

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 Sexual intercourse is prohibited under the incest statute only
if the perpetrator and victim are related. Thus, the requirement

in the incest statute that the parties be related is an element

that is not included in the sexual intercourse without consent

statute. Furthermore, to prove incest it is not necessary under

the circumstances of this case that sexual intercourse without
consent be proven. Sexual contact alone is sufficient

Lack of consent is an element of sexual intercourse without

consent but not, under the circumstances, an element of incest.

The incest statute only allows consent to be raised as a defense if

the victim is a stepson or stepdaughter eighteen years of age or

older. In the present case, Heidi was McQuiston's adopted

daughter. Montana considers an adoptive father to be a parent, not

a stepparent. See 5 40-8-103(g), MCA (1987). Since McQuiston was

Heidi's adoptive father, consent was not an issue with the incest

charge. The two charges contain distinct elements and each

requires proof of facts which the other does not.

In State v. Sor-Lokken (19911, 247 Mont. 343, 805 P.2d 1367,

this Court held that the defendant's convictions of both sexual

assault and incest did not violate double jeopardy protections.

Sor-Lokken, 805 P.2d at 1373. We relied on the fact that the State

needed to prove lack of consent for the sexual assault charge,

while lack of consent was not an element which required proof for

the incest charge. Sor-Lokken, 805 P.2d at 1373. In Sor-Lokken we

also distinguished State v. Hall (1986), 224 Mont. 187, 728 P.2d

12
1339, rev’donotherpunds (1987), 481 U.S. 400, 107 S. Ct. 1825, 95 L.

Ed. 2d 354, by noting that the victim was the defendant's

twelve-year-old stepdaughter and therefore lack of consent was not

a required element for the sexual assault charge. Sor-Lokken, 805
P.2d at 1373. Thus, McQuiston's reliance on Hall in the present

case is misplaced since lack of consent was an element of proof

required for his conviction of sexual intercourse without consent

due to Heidi's age at the time the incident occurred.
McQuiston goes on to assert that the Blockburger test does not

work well in the context of this case. He instead relies on

Montana's double jeopardy statute, § 46-11-410, MCA, previously
codified at 5 46-11-502, MCA (1987). McQuiston claims that

$4 46-11-410121 (a), MCA, which provides that a defendant may not be

convicted of more than one offense if "one offense is included in

the other," when read in conjunction with § 46-l-202(8), MCA, which

defines "included offense" provides broader protection than that

afforded by the Blockburqer test.

McQuiston also relies on § 46-ll-410(2) cd), MCA, to argue that

a defendant may not be convicted of more than one offense if "the

offenses differ only in that one is defined to prohibit a specific

instance of the conduct." He claims that the general statute, §

45-5-503, MCA, prohibits sexual intercourse without consent, while

the more specific statute, § 45-5-507, MCA, prohibits such conduct

with one's daughter.

13
 We are not persuaded by McQuiston's interpretation of
S 46-11-410, MCA. Incest is not an "included offense" of sexual

intercourse without consent, nor, under the facts of this case, is
it a "specific instance" of the conduct proscribed by 5 45-5-503,
MCA. Incest is a distinct and wholly separate offense from sexual

intercourse without consent and each offense requires proof of

distinct elements that the other does not. We therefore hold that
the District Court correctly interpreted the law and did not

violate double jeopardy protections when it convicted McQuiston of

sexual intercourse without consent and incest.

ISSUE 3

Did the District Court err in sentencing McQuiston?

On March 13, 1995, the District Court sentenced McQuiston in
open court to a term of fifteen years in the state prison, with

five years suspended, for the conviction of sexual intercourse

without consent, and to a term of fifteen years in the state

prison, with five years suspended, for the incest conviction. On

March 14, 1995, the court entered its written judgment and

sentencing order indicating that it was imposing a sentence of

thirty years in prison, with the last five years suspended, for

each of the two offenses. The two sentences were ordered to be

served consecutively and the court designated McQuiston as a

persistent felony offender and a dangerous offender.

On March 31, 1995, the District Court entered an amendment to

its judgment stating it had reviewed the transcript of the

14
sentencing hearing and found that its order was inconsistent with
the sentence imposed in open court. The court amended the sentence
to twenty-two and one-half years in prison, with five years

suspended, for each of the two offenses. The court ordered the

sentences to run consecutively for a total sentence of forty-five

years in prison, with ten years suspended. In its memorandum to

the amended judgment, the court stated that:
The Court mistakenly treated the persistent felony
designation as an enhancement tool. That designation
apparently does not enhance the sentence, but simply
affords the Court the right to impose a sentence in
exces.s of the maximum allowed for the crimes for which a
Defendant is convicted. State v. Fitzpatrick, 247 Mont.
206.

In this Court's view, it['ls all a game of
semantics. But in any case this amended sentence
conforms with the Court's intent.
McQuiston argues that the District court Is sentence

constitutes an exp.sl.facto violation of the law because it sentenced

him on the incest conviction pursuant to the statute in effect at

the time of the sentencing hearing, rather than the statute in

effect at the time the offense occurred. Furthermore, McQuiston

contends that the District Court erred in designating him a

persistent felony offender and in sentencing him without first

receiving a sexual offender evaluation.

Section 45-5-507(3), MCA (1987), provides that a person

convicted of incest shall be imprisoned for any term not to exceed

ten years. This statute was amended in 1991 and the maximum term

of imprisonment was increased to twenty years. Section 45-5-507,

15
MCA (1991). The 1987 version of the Code applies to this case
since the offenses charged occurred in February 1989.

However, when a defendant has been designated a persistent

felony offender, it is 5 46-18-502, MCA, that determines the

maximum length of the sentence, not the statute governing the

underlying offense. We have stated that the persistent felony

offender provision "replace[sl the maximum sentence prescribed for

the offense. It is not a sentence in addition to the sentence for

the offense." State v. Fitzpatrick (1991), 247 Mont. 206, 208, 805

P.2d 584, 586. Section 46-18-502(l), MCA, provides that "a

persistent felony offender shall be imprisoned in the state prison

for a term of not less than 5 years or more than 100 years."

In the present case, the District court stated that

McQuiston's sentence reflected his status as a persistent felony

offender. Thus, the court's sentence of twenty-two and one-half

years for the incest conviction was well within the loo-year

maximum sentence allowed by the persistent felony offender statute.

We therefore conclude the District Court did not err in sentencing

McQuiston, nor did it apply the law expostfacto.

Section 46-13-108(l), MCA, requires the prosecution to give

notice at or before the omnibus hearing of its intent to treat the

accused as a persistent felony offender. Section 46-13-108(5),

MCA, requires that notice must be filed and sealed until the time

of trial or until a plea of guilty is given by the defendant. The

purpose for providing such notice is to give the defendant an

16
opportunity to file an objection to the criminal record relied upon

in the notice and to hold a hearing should there be any such

objection. See 5 46-13-108(3), (4), MCA.

On May 3, 1994, the State served defense counsel with notice

that pursuant to §§ 46-18-501 and -502, MCA, it intended to seek

increased punishment for McQuiston as a persistent felony offender.

McQuiston had been convicted of two prior felonies, one in 1982 and

one in 1991. The notice, however, was not filed with the District

Court until October 11, 1994, after the trial was concluded.
McQuiston argues that timely filing of the notice is a

jurisdictional prerequisite and thus, failure to do so constitutes

reversible error.
In State v. Madera (19831, 206 Mont. 140, 670 P.2d 552, we

interpreted the former version of the statute, 5 46-18-503, MCA,

which required two notices. First, the State had to give the

defense notice of its intent to seek treatment of the accused as a

persistent felony offender prior to entry of a guilty plea or

before trial. A second notice had to be filed with the court

before sentencing. In Madera the defendant had received written

notice before trial but claimed the second notice was deficient.

The trial court had set the date for the sentencing hearing at the

same time it received a motion to designate the defendant a

persistent felony offender. In affirming the district court, we

stated that the first notice to the defense was jurisdictional

while the second notice to the court was simply procedural.

17
Madera, 670 P.Zd at 560. We held that the defendant was not
prejudiced by the failure to file the second notice prior to

setting the date for the sentencing hearing since he had sufficient

notice of the charge which would be used against him. Madera, 670

P.2d at 560.

Section 46-20-701(l), MCA, provides that "inlo cause shall be

reversed by reason of any error committed by the trial court . . .

unless the record shows that the error was prejudicial." We have

held that prejudice will not be presumed, but must appear from a
fact established in the record or from the denial or invasion of a

substantial right from which the law imputes prejudice. State v.

Arlington (1994), 265 Mont. 127, 150, 875 P.Zd 307, 321; State v.

Newman (1990), 242 Mont. 315, 325, 790 P.2d 971, 977.

In the present case, McQuiston was sent notice of the State's

intent to seek persistent felony status over a month prior to the

omnibus hearing and five months before trial. Furthermore, the
notice was filed with the District Court five months prior to

sentencing. We conclude that McQuiston was not prejudiced by the

State's failure to file notice of its intent to treat McQuiston as

a persistent felony offender prior to trial. Thus, we hold that

the District Court did not err in designating McQuiston a

persistent felony offender.
Prior to sentencing, the District Court ordered a presentence

investigation report and ordered that McQuiston undergo a sex

offender evaluation. No sex offender evaluation had been prepared

18
at the time of sentencing. McQuiston alleges that the District
court did not have the discretion to sentence him without
considering a completed presentence investigation containing the

evaluation and recommendation required by § 46-18-111, MCA.

At the sentencing hearing, McQuiston's probation officer

testified that sex offender clinics in Helena and Bozeman had been

contacted and had stated that because McQuiston was in denial, an

evaluation would be of no benefit. A Missoula doctor indicated he.

would be available for an evaluation but, according to the
probation officer, McQuiston was unavailable due to his
incarceration as a result of the revocation of a previous

probationary sentence.

Section 46-18-111, MCA (19871, provides that:

No defendant convicted of an offense under 45-5-502
through 45-5-505, 45-S-507, or 45-5-625 against a victim
who was less than 16 years old when the offense was
committed may be sentenced or otherwise disposed of
before a written report of investigation by a probation
officer is presented to and considered by the court. The
investigation must include an evaluation of the defendant
and a recommendation as to treatment by a person
qualified by professional experience.

Heidi was nineteen years old when the offenses were committed.

Thus, the sex offender evaluation was not mandatory. Even though

the District Court ordered that such an evaluation be conducted,

the court stated at the sentencing hearing that:

I don't think I'm going to require him to participate in
it. He's got enough facing him as it is. And if he's
still in denial, it won't do any good anyway.

19
 we have stated that this Court will not disturb a district
court's sentencing decision absent a showing that the court abused
its discretion. State v. Blanchard (19951, 270 Mont. 11, 15, 889
P.Zd 1180, 1182. The record is clear that McQuiston denied the
crimes for which he was convicted, and therefore, sex offender
treatment would be ineffective. Under those circumstances, we
conclude that the District Court did not abuse its discretion in
sentencing McQuiston without considering a sex offender evaluation.
Affirmed
afzFx%L Justice

ef Justice

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