95-391
No. 95-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA
Plaintiff and Respondent,
v.
TODD ANDERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roberta A. Drew; Deputy Public Defender;
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek; Attorney General;
Tammy Plubell; Assistant Attorney General;
Helena, Montana
Dennis Paxinos; Yellowstone County Attorney;
Marcia Good Sept; Deputy County Attorney;
Billings, Montana
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Submitted on Briefs: January 23, 1997
Decided: March 18, 1997
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, Todd Anderson, was charged by information,
filed in the District Court for the Thirteenth Judicial District in
Yellowstone County, with one count of sexual abuse of children, a
felony, in violation of 45-5-625, MCA, and four counts of sexual
intercourse without consent, felonies, in violation of 45-5-503,
MCA. He pled guilty to all five counts. At the sentencing
hearing, the District Court determined that, pursuant to
46-18-104(2), MCA (1993), Anderson committed a "crime of
violence." He appeals the judgment of the District Court. We
affirm the District Court.
The issue on appeal is whether the District Court erred when
it determined that, pursuant to 46-18-104(2), MCA (1993),
Anderson committed a "crime of violence."
FACTUAL BACKGROUND
On January 18, 1995, Todd Anderson pled guilty to one count of
sexual abuse of children and four counts of sexual intercourse
without consent. He admitted that, on numerous occasions during
the preceding years, he sexually molested B.S., his stepdaughter.
Prior to the sentencing hearing, Dr. Norm Honeyman conducted
a sexual offender evaluation. His report stated, in part:
[Anderson] set up situations, whereby [B.S.] had to give
him sexual favors to be able to do things a child might
want to do or he would keep her away from friends, keep
her in her room or ground her to the house.
On May 17, 1995, the District Court sentenced Anderson to the
Montana State Prison for: (1) a term of thirty years, with ten
years suspended, for the conviction of sexual abuse of children;
and (2) a term of twenty years for each conviction of sexual
intercourse without consent, to run concurrently to each other and
the thirty-year sentence. The District Court also found, pursuant
to 46-18-104(2), MCA (1993), that Anderson committed a "crime of
violence" and that community-based punishment alternatives to
incarceration are not appropriate.
Anderson filed a notice of appeal on July 12, 1995. He
asserted that the District Court erred when it failed to articulate
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reasons in support of its finding that he committed a "crime of
violence." Therefore, on February 22, 1996, we remanded this case
and ordered the District Court to enter a memorandum in support of
sentence.
In its memorandum in support of sentence, the District Court
made the following determination:
In addition, [Anderson] stated to Dr. Honeyman that
[Anderson] would confine B.S. to her room or ground her
if she was unwilling to perform a sexual favor.
Subjecting B.S. to physical confinement constitutes a
threat by [Anderson].
(Emphasis added.) On that basis, the District Court concluded
that, pursuant to 45-2-101(68)(b) and 46-18-104(2)(c), MCA
(1993), Anderson committed a "crime of violence."
DISCUSSION
Did the District Court err when it determined that, pursuant
to 46-18-104(2), MCA (1993), Anderson committed a "crime of
violence"?
We review a district court's legal conclusions to determine
whether they are correct. Carbon County v. Union Reserve Coal Co.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
In Montana, a "crime of violence" is statutorily defined as
follows:
(2) "Crime of violence" means:
(a) a crime in which an offender uses or possesses
and threatens to use a deadly weapon during the
commission or attempted commission of a crime;
(b) a crime in which the offender causes a serious
bodily injury or death to a person other than himself; or
(c) any sexual offense in which the offender causes
bodily injury to the victim or uses threat, intimidation,
or force against the victim.
Section 46-18-104(2), MCA (1993) (emphasis added).
Additionally, the term "threat" is statutorily defined, in
relevant part, as follows:
(68) "Threat" means a menace, however communicated,
to:
. . . .
(b) subject any person to physical confinement or
restraint . . . .
Section 45-2-101(68)(b), MCA (1993).
On appeal, Anderson maintains that the District Court erred
when it determined that he committed a "crime of violence."
Specifically, he makes the following argument: (1) there is no
evidence in the record to establish that he ever physically
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restrained B.S.; and (2) therefore, he did not use a "threat," as
defined by 45-2-101(68)(b), MCA (1993), during the commission of
his crimes. Accordingly, he contends that he did not commit a
"crime of violence" pursuant to 46-18-104(2), MCA (1993).
The State did not allege, and the District Court did not find
that Anderson physically restrained B.S. during the commission of
his crimes. However, the definition of a "threat" in 45-2-
101(68)(b), MCA (1993), also refers, in the disjunctive, to a
menace to physically confine.
The record--specifically, Dr. Honeyman's sexual offender
evaluation--establishes that Anderson would threaten to "keep
[B.S.] away from friends, keep her in her room or ground her to the
house" in order to compel her to perform sexual favors. On that
basis, we conclude that Anderson menaced B.S. with "physical
confinement" and that, therefore, pursuant to 45-2-101(68)(b)
and 46-18-104(2)(c), MCA (1993), he committed a "crime of
violence."
Accordingly, we hold that the District Court did not err when
it held that, pursuant to 46-18-104(2), MCA (1993), Anderson
committed a "crime of violence." The judgment of the District
Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ KARLA M. GRAY
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