No
No. 98-381
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 115
294 Mont. 397
983 P.2d 881
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WAYLAND PAUL HARRIS,
Defendant and Appellant.
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APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass't
Attorney General, Helena, Montana
Bernie Cassidy, Lincoln County Attorney, James B. Wheelis,
Deputy County Attorney, Libby, Montana
Submitted on Briefs: February 4, 1999
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Decided: May 28, 1999
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1. Wayland Paul Harris (Harris) appeals from the judgment entered by the
Nineteenth Judicial District Court, Lincoln County, on a jury verdict finding him
guilty of incest. We affirm.
¶2. Harris raises the following issues on appeal:
¶3. 1. Did the District Court err in failing to instruct the jury that, to find Harris
guilty of incest, the jurors must reach a unanimous verdict on at least one specific act
of incest?
¶4. 2. Did the District Court err in concluding that the guilty verdict on the incest
charge was not legally inconsistent with the verdict acquitting Harris of sexual
intercourse without consent?
¶5. 3. Did the District Court err in concluding that the verdict did not violate Harris'
constitutional right to equal protection?
¶6. 4. Did the District Court err in not precluding the State from using Harris'
extrajudicial statement for purposes of impeachment at trial?
BACKGROUND
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¶7. The State of Montana (State) charged Harris by amended information with three
offenses, each based on allegations that he had sexual relations with his adopted
daughter, Gwen Michelle Larson (Gwen). Count I of the amended information
charged Harris with sexual intercourse without consent, a felony, alleged to have
occurred on numerous occasions between November of 1988 and November 21, 1991.
Count II charged him with sexual intercourse without consent, a felony, alleged to
have occurred on numerous occasions between November 21, 1991, and January 1,
1997. Count III charged him with incest, a felony, alleged to have occurred on
numerous occasions between November of 1988 and January 1, 1997.
¶8. After a four-day trial in December of 1997, the jury acquitted Harris of the two
sexual intercourse without consent charges and found him guilty of incest. Harris
subsequently moved the District Court to set aside the verdict and dismiss the incest
charge on the grounds that the verdict was inconsistent and contrary to the
instructions given the jury, and the conviction violated his constitutional right to
equal protection. The District Court denied Harris' motion, sentenced him, and
entered judgment on the conviction and sentence. Harris appeals.
DISCUSSION
¶9. 1. Did the District Court err in failing to instruct the jury that, to find Harris
guilty of incest, the jurors must reach a unanimous verdict on at least one specific act
of incest?
¶10. Prior to deliberations, the District Court instructed the jury that the law
required the jury verdict to be unanimous and that all twelve jurors must agree in
order to reach a verdict on each charge against Harris, whether that verdict be guilty
or not guilty. Harris argues that the court should have given a more specific
unanimity instruction. He asserts that, because each of the charges in the amended
information encompassed lengthy time periods, the court should have instructed the
jurors that they were required to agree unanimously that he performed at least one
specific act constituting the offense during the time period alleged in each charge to
find him guilty of the offense, and that the court's failure to do so was error. The
State responds that Harris failed to preserve this argument for appeal because he did
not offer a more specific unanimity instruction and did not object to the unanimity
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instruction given.
¶11. A party may not assert error on appeal as to any portion of, or omission from,
jury instructions unless the party made an objection at the time of settling the
instructions which specified the matter objected to and the grounds for the objection.
Section 46-16-410(3), MCA. Additionally, the failure to make a timely objection
during trial constitutes a waiver of the objection on appeal unless one of the
circumstances outlined in § 46-20-701(2), MCA, exists. Section 46-20-104(2), MCA.
Harris concedes that he did not object to the unanimity instruction given by the court
or to the failure to give a more specific instruction, and that none of the § 46-20-701
(2), MCA, circumstances exists here. Thus, pursuant to these statutes, he is barred
from raising this issue on appeal. Harris urges us, however, to address this issue
under the common law doctrine of plain error review.
¶12. We have held that, notwithstanding the failure to object to an alleged error and
the inapplicability of § 46-20-701(2), MCA, we may discretionarily review a claimed
error which affects fundamental constitutional rights where failing to review it may
result in a manifest miscarriage of justice, leave unsettled the question of the
fundamental fairness of the proceedings or compromise the integrity of the judicial
process. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215. We further
held in Finley, however, that we will use our inherent power of plain error review
sparingly and only in exceptional cases meeting one of the above criteria. Finley, 276
Mont. at 138, 915 P.2d at 215. Based on our review of the record before us, we
conclude that this is not one of those exceptional cases warranting plain error review
and we decline to address this issue.
¶13. 2. Did the District Court err in concluding that the guilty verdict on the incest
charge was not legally inconsistent with the verdict acquitting Harris of sexual
intercourse without consent?
¶14. Following trial, Harris moved to set aside the verdict and dismiss the incest
charge, arguing that it was legally inconsistent for the jury to have found him not
guilty of the sexual intercourse without consent charge alleged in Count I, but guilty
of the incest charge alleged in Count III. The District Court denied the motion and
Harris asserts error.
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¶15. We observe that the criminal procedure statutes do not provide for motions to
set aside the verdict. However, § 46-16-702, MCA, permits a defendant to move for a
new trial and authorizes a trial court addressing such a motion to modify or change a
verdict by finding a defendant not guilty of the offense. Consequently, we deem
Harris' motion a motion for a new trial under § 46-16-702, MCA. See State v Bell
(1996), 277 Mont. 482, 485, 923 P.2d 524, 526. We review a district court's ruling on a
motion for a new trial to determine whether the court abused its discretion. Bell, 277
Mont. at 485, 923 P.2d at 526. Furthermore, the District Court's determination that
the verdicts were not inconsistent under the law involves a question of law. We
review a district court's conclusions of law to determine whether the court's
interpretation of the law is correct. Bell, 277 Mont. at 486, 923 P.2d at 526.
¶16. As stated above, Harris was charged with two counts of sexual intercourse
without consent, which is defined in § 45-5-503(1), MCA, as knowingly having sexual
intercourse without consent with another person. Count I was based on alleged acts
of sexual intercourse with Gwen occurring between November of 1988 and
November 21, 1991, while Count II was based on alleged acts of sexual intercourse
with Gwen occurring between November 21, 1991, and January 1, 1997. The
separate charges reflect the statutory definition of the term "without consent" for
purposes of establishing the offense of sexual intercourse without consent. Count I
encompasses a time period when Gwen was under the age of 16 and, pursuant to § 45-
5-501(1)(b)(iii), MCA, was legally incapable of consenting to sexual intercourse.
Consequently, in order to prove the offense charged in Count I, the State was
required to prove only that Harris and Gwen had sexual intercourse during the time
period alleged; the lack of consent element of the offense was presumed based on
evidence that Gwen was under the age of 16.
¶17. Harris contends that, because lack of consent was presumed under Count I, the
not guilty verdict on that charge necessarily means that the jury found the State had
not proved he and Gwen had sexual intercourse between November of 1988 and
November 21, 1991. He further notes that the incest charge alleged in Count III
alleged acts of sexual intercourse during a time period which encompassed the same
period of November of 1988 through November 21, 1991. He argues therefrom that,
because the jury found no acts of sexual intercourse occurred between November of
1988 and November 21, 1991, it is legally impossible for the jury to have found him
guilty of incest under Count III.
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¶18. A person commits incest if he or she
knowingly marries, cohabits with, has sexual intercourse with, or has sexual contact . . .
with an ancestor, a descendant, a brother or sister of the whole or half blood, or any
stepson or stepdaughter.
Section 45-5-507(1), MCA. Count III of the amended information alleged that Harris had
committed incest by having sexual intercourse with Gwen, a descendent by adoption, on
numerous occasions between November of 1988 and January 1, 1997. Although the incest
charge included the same time period alleged in Count I, it also included an additional
period of over five years which did not form the basis for Count I. Furthermore,
notwithstanding that Count III alleged numerous acts of sexual intercourse, the State was
required to prove only one act of sexual intercourse between Harris and his adopted
daughter during the period alleged in Count III for the jury properly to have found that
Harris committed incest. Thus, it is conceivable that, in finding Harris guilty of incest, the
jury found that an act of sexual intercourse occurred between Harris and Gwen after
November 21, 1991, and, indeed, Gwen's testimony about a specific act of intercourse
which occurred on January 1, 1997, provided sufficient evidence of record to support such
a finding. As a result, we conclude that it was not legally inconsistent for the jury to acquit
Harris of sexual intercourse without consent under Count I and find him guilty of incest
under Count III.
¶19. We hold that the District Court correctly concluded that the guilty verdict on
the incest charge was not legally inconsistent with the verdict acquitting Harris of
sexual intercourse without consent. We further hold, therefore, that the court did not
abuse its discretion in denying Harris' motion to set aside the verdict and dismiss the
incest charge which we have deemed a motion for a new trial.
¶20. 3. Did the District Court err in concluding that the verdict did not violate
Harris' constitutional right to equal protection?
¶21. Harris also moved to set aside the verdict finding him guilty of incest on the
basis that, if he were guilty of incest, it necessarily followed that Gwen also was guilty
of incest and the State's failure to prosecute her for that offense violated his
constitutional right to equal protection. The District Court concluded that the State's
decision not to prosecute Gwen was a reasonable exercise of prosecutorial discretion
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and denied the motion. Again, we deem Harris' motion to set aside the verdict to be a
motion for a new trial under § 46-16-702, MCA, and we review the District Court's
ruling to determine whether the court abused its discretion. See Bell, 277 Mont. at
485, 923 P.2d at 526. Furthermore, when resolution of an issue involves a question of
constitutional law, we review the court's interpretation of the law to determine
whether it is correct. See State v. Koehn, 1998 MT 234, ¶9, 966 P.2d 143, ¶ 9, 55 St.
Rep. 985, ¶ 9 (citations omitted).
¶22. A person commits the offense of incest if he or she "knowingly . . . has sexual
intercourse with . . . an ancestor, a descendant, a brother or sister of the whole or
half blood, or any stepson or stepdaughter." Section 45-5-507(1), MCA. Harris was
charged with--and found guilty of--having sexual intercourse with his adopted
daughter. The relationships set forth in the incest statute include the relationship of
parent and child by adoption and, thus, Harris' adopted daughter would be
considered a descendant. See § 45-5-507(1), MCA. Harris notes that the statute also
makes it a crime to have sexual intercourse with an ancestor and contends that,
because he was found guilty of incest for having sexual intercourse with Gwen, it
necessarily follows that Gwen is guilty of incest for the same act because he is her
ancestor. He argues that, once the jury found that sexual intercourse occurred, the
State's failure to prosecute Gwen for that offense constituted disparate treatment of
members of the same class and violated his constitutional right to equal protection of
the law.
¶23. A prosecutor has broad discretion in determining whether or not to prosecute.
State v. Lemmon (1984), 214 Mont. 121, 126, 692 P.2d 455, 457. Thus, the conscious
exercise of some selectivity in the enforcement of criminal laws, without more, does
not constitute a violation of constitutional rights. Lemmon, 214 Mont. at 126, 692
P.2d at 458; see also, State v. Stanko, 1998 MT 323, ¶ 51, ___ P.2d ___, ¶ 51, 55 St.
Rep. 1313, ¶ 51; State v. Pease (1987), 227 Mont. 424, 428, 740 P.2d 659, 661; State v.
Maldonado (1978), 176 Mont. 322, 328-29, 578 P.2d 296, 300. A person asserting that
his or her constitutional rights have been violated by selective prosecution must
allege and prove that the selection was deliberately based on an unjustifiable
standard such as race, religion or other arbitrary classification. Stanko, ¶ 51; Pease,
227 Mont. at 428, 740 P.2d at 661; Lemmon, 214 Mont. at 126, 692 P.2d at 458;
Maldonado, 176 Mont. at 329, 578 P.2d at 300.
¶24. Here, while Harris contends that his constitutional right to equal protection of
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the laws was violated by the State's failure to prosecute Gwen for incest, he has not
alleged--much less shown--that the State's decision not to prosecute Gwen was based
on any arbitrary, unjustifiable standard. As a result, we conclude that Harris has not
established that his constitutional right to equal protection of the law has been
violated.
¶25. We hold, therefore, that the District Court correctly concluded the verdict did
not violate Harris' constitutional right to equal protection and did not abuse its
discretion in denying Harris' motion.
¶26. 4. Did the District Court err in not precluding the State from using Harris'
extrajudicial statement for purposes of impeachment at trial?
¶27. At the time of Harris' arrest, he was interviewed by two law enforcement
officers and admitted an act of sexual intercourse with Gwen. Prior to trial, Harris
moved to suppress his statement on the basis that it was involuntary and obtained in
violation of his rights as guaranteed by the Fifth Amendment to the United States
Constitution. His motion sought to preclude use of the statement both as substantive
evidence of the commission of the charged offenses and for purposes of impeachment
should he decide to testify at trial. The District Court concluded that the statement
could not be used in the State's case-in-chief because it was involuntary, and granted
that portion of Harris' motion. The court expressly stated that its limited suppression
order did not address whether Harris' statement could be used by the State for
impeachment purposes in the event Harris testified at trial. Harris never requested a
further ruling from the court on this issue either prior to or during trial.
¶28. The State complied with the suppression order at trial and did not elicit any
testimony during its case-in-chief regarding Harris' admission that he had sexual
intercourse with Gwen. Harris testified at trial that he had never had sexual
intercourse with Gwen and, during his direct examination, his attorney inquired
regarding the statement he made when arrested that he had committed one act of
sexual intercourse with Gwen. Harris testified that the prior statement was false. On
cross-examination, the State questioned Harris further regarding his prior
statement. Harris contends on appeal that the District Court erred in failing to
suppress the use of his prior statement for impeachment purposes.
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¶29. The State asserts that Harris waived his right to raise this issue on appeal
because he introduced evidence of the prior statement himself without requesting a
further ruling from the District Court regarding the admissibility of the statement
for impeachment purposes. In response, Harris relies on State v. Ingraham, 1998 MT
156, 966 P.2d 103, 55 St.Rep. 611, and State v. Fuhrmann (1996), 278 Mont. 396, 925
P.2d 1162, in arguing that his pretrial motion to suppress was sufficient to preserve
this issue for appeal without a further motion or objection at trial.
¶30. In both Ingraham and Fuhrmann, we held that the filing of a pretrial motion in
limine seeking to exclude evidence was sufficient to preserve the defendant's
objection to the admission of the evidence for appeal and the defendant was not
required to make an additional objection when the evidence was offered at trial.
Ingraham, ¶ 36; Fuhrmann, 278 Mont. at 403, 925 P.2d at 1166-67. In those cases,
however, the trial courts specifically denied the defendants' motions prior to trial.
Ingraham, ¶ 30; Fuhrmann, 278 Mont. at 403, 925 P.2d at 1167. Thus, because the
courts had made their determinations as to the admissibility of the evidence at issue,
there was no need for a further objection.
¶31. Here, the District Court did not make a pretrial determination regarding
whether Harris' statement could be used for impeachment purposes. Essentially, the
court reserved its ruling on the motion for a later time, as authorized by § 46-13-104
(1), MCA. Harris did not request a ruling on his motion thereafter and,
consequently, when he testified regarding the content of his prior statement, he
waived his objection to its admissibility for use as impeachment. As a result, and
unlike the situations presented in Ingraham and Fuhrmann, Harris' pretrial motion
to suppress did not preserve his argument for appeal.
¶32. Furthermore, Harris' testimony about the prior statement during direct
examination brought the statement into evidence by his own volition. We will not put
a district court in error for an action in which the appealing party acquiesced or
actively participated. See State v. Clay, 1998 MT 244, ¶ 24, 967 P.2d 370, ¶ 24, 55 St.
Rep. 1014, ¶ 24.
¶33. We conclude that Harris waived his right to appeal the admissibility of his
statement for use as impeachment and we decline to address this issue further.
¶34. Affirmed.
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/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
Justice James C. Nelson specially concurs.
¶35. I concur with the Court's opinion as to Issues 2, 3 and 4. I concur with the result
reached as to Issue 1, but not on the basis expressed in the Court's opinion. Rather,
on this issue, I would reach and rule on the merits of Harris' argument.
¶36. In State v. Weaver, 1998 MT 167, 964 P.2d 713, 55 St.Rep. 668, we addressed, via
plain error analysis, the same issue raised here by Harris. Weaver, ¶¶ 22 through 40.
Harris was tried in December 1997, and, accordingly, because Weaver was handed
down on July 1, 1998, neither Harris, his counsel nor the trial court had the benefit
of our decision. Having addressed the same unanimity instruction issue in Weaver on
the basis of the plain error rationale set out in State v. Finley (1996), 276 Mont. 126,
915 P.2d 208, I can see no logical reason why we should not also do the same thing
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here.
¶37. Having said that, I would, nevertheless, hold that a specific (as opposed to a
general) unanimity instruction was not warranted in this case. In Weaver, we held
that a specific unanimity instruction is required in cases where different criminal
acts are charged in one count. In other words, the jury is to be instructed that it must
reach a unanimous verdict on at least one specific act for each count. Weaver, ¶¶ 38-
40.
¶38. Notwithstanding our adoption of this general rule, we also recognized an
exception where
the criminal acts are so closely connected that they form part of one and the same
transaction, and thus one offense. Thus, "[s]eparate acts may also result in but one crime if
they occur within a relatively short time span . . . ".
Weaver, ¶ 35 (citing People v. Gordon (1985), 165 Cal.App.3d 839, 854-55, 212 Cal.Rptr. 174, 184-85). In
these sorts of cases, the general unanimity instruction will suffice. See Weaver, ¶ 29.
¶39. In my view, this "continuous course of conduct" exception applies in the case
sub judice. Here, the record reflects that Harris had sexual relations with Gwen
commencing shortly after her 13th birthday and on a regular basis for eight years
thereafter. While Gwen testified that Harris' began having sex with her a couple of
months after she began menstruating at age 13 and that the last act of sex occurred
on January 1, 1997, she could not otherwise remember intervening specific dates that
Harris had sex with her. Unlike the victims in Weaver, the sexual assaults on Gwen
involved more that a few discreet incidents. See Weaver, ¶¶ 7-17, 36. Gwen testified
that Harris demanded sex from her frequently, as often as two to four times per week
whenever her mother and brother were away from their isolated, backwoods home.
For the most part Harris would either physically force her, intimidate her or frighten
her into having sex with him on these occasions. As the District Court noted in its
sentencing order "[t]he Defendant held his adopted daughter as his virtual 'sex slave'
for a number of years in a remote location, isolating her from her friends, and
preventing her from attending school." These facts distinguish the instant case from
Weaver.
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¶40. I conclude that Harris' criminal acts were so closely connected that they formed
part of one and the same transaction, and thus one offense--i.e. that his acts of incest
were a "continuous course of conduct." Harris was only charged with and convicted
of one count of incest, albeit that "between November 1988 and January 1, 1997, . . .
[he] . . . on many occasions knowingly had sexual intercourse with Gwen . . . his
adopted daughter." On the evidence and record here there was no genuine possibility
of jury confusion or that Harris would be convicted as a result of different jurors
concluding that he committed different acts. See Weaver, ¶ 34 (quoting United States
v. Echeverry (9th Cir. 1983), 719 F.2d 974, 975). While Harris' criminal conduct
occurred over an eight year period--and, thus, arguably, not over a short time span--
his repeated illegal acts during that period were so frequently perpetrated and so
closely connected as to be properly viewed as a single continuous or running offense.
¶41. Accordingly, on the record here, I would hold that the trial court did not err in
failing to give a specific unanimity instruction. I would affirm as to Issue 1 on this
basis.
/S/ JAMES C. NELSON
Justices W. William Leaphart and Jim M. Regnier join in the foregoing special
concurrence.
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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