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No. 99-312
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 235
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KENNETH WAYNE BAKER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable David Cybulski, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Loren J. O'Toole II; O'Toole & O'Toole, Plentywood, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,
Assistant Attorney General; Helena, Montana
Steven Howard, Sheridan County Attorney; Plentywood, Montana
Submitted on Briefs: March 23, 2000
Decided: August 28, 2000
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Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Kenneth Wayne Baker (Baker) appeals from the judgment entered by the Fifteenth
Judicial District Court, Sheridan County, on a jury verdict finding him guilty of sexual
assault. We affirm.
¶2 Baker raises the following issues:
¶3 1. Did the District Court abuse its discretion in denying Baker's motion for a mistrial?
¶4 2. Did the District Court abuse its discretion by failing to grant Baker's motion for a
continuance?
¶5 3. Did the District Court abuse its discretion in denying Baker's motion for a directed
verdict?
BACKGROUND
¶6 Baker was charged by information with the offense of sexual assault, in violation of §
45-5-502, MCA, for allegedly having nonconsensual sexual contact with a seven-year-old
girl. Baker pleaded not guilty to the charge and a jury trial was held on October 26, 1998.
At trial, the State of Montana (State) called Debra Johnson (Johnson), a community social
worker, as its first witness in its case-in-chief. Johnson testified that she received a referral
alleging that the victim in this case had been sexually assaulted by Baker. Johnson
reported the referral to the Sheridan County Sheriff's Office (SCSO), which conducted an
investigation into the allegations against Baker.
¶7 Johnson also testified that she assisted the SCSO with its investigation by participating
in three interviews of the child victim. The first two interviews were directly related to the
allegations against Baker and transcripts of those two interviews were provided to Baker
pursuant to his pretrial discovery requests. The third interview of the victim related to
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separate allegations that the victim also had been sexually abused by her natural father.
Although Baker's name was mentioned in the third interview, he was not provided with
either a videotape or transcript of this interview prior to trial. During cross-examination of
Johnson, Baker informed the District Court that he had not received a transcript of the
third interview with the victim and the court instructed Johnson to immediately retrieve
the transcript of the interview from her file so Baker could be provided a copy. Baker did
not request a continuance of the trial at that time.
¶8 The State then called Gretchen Blewett (Blewett), a deputy sheriff who assisted in the
investigation and participated in the three interviews of the victim. Blewett testified on
cross-examination that the third interview contained allegations against Baker as well as
against the victim's father. At that point, Baker moved to continue the trial until he had an
opportunity to review the transcript of the third interview. The District Court denied the
motion, stating that Baker could review the transcript over a two-hour break for lunch and
that the court was willing to address the motion again after the break should Baker
determine he needed more time.
¶9 Following the lunch break and Baker's review of the third interview transcript, the
parties met in chambers. Baker moved the District Court for a mistrial, arguing that the
prosecution's failure to provide him with the transcript had denied him exculpatory
evidence and impaired his ability to cross-examine the witnesses who had testified that
morning. The State responded that a mistrial was not warranted because the third
interview did not contain any exculpatory evidence and any adverse effect on Baker's
ability to examine witnesses could be cured by recalling those witnesses for further cross-
examination. After reviewing the transcript of the third interview, the District Court
denied the motion for a mistrial. Baker then again moved to continue the trial for one
week to prepare in light of the new information regarding the third interview. The court
reserved its ruling on that motion until the end of the State's case-in-chief.
¶10 After the State rested its case, the parties met in chambers and Baker moved for a
directed verdict, arguing that the State had failed to prove the elements of the offense of
sexual assault. The District Court denied the motion. Baker did not renew his motion for a
continuance or request a ruling on his earlier motion.
¶11 The jury found Baker guilty of sexual assault. The District Court sentenced Baker and
entered judgment on the conviction and sentence. Baker appeals.
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DISCUSSION
¶12 1. Did the District Court abuse its discretion in denying Baker's motion for a mistrial?
¶13 We review a district court's ruling on a motion for a mistrial to determine whether the
court abused its discretion. State v. Partin (1997), 287 Mont. 12, 17-18, 951 P.2d 1002,
1005. Where a defendant moves for a mistrial, the motion should be granted when the
defendant otherwise would be denied a fair and impartial trial. Partin, 287 Mont. at 16-17,
951 P.2d at 1004-05.
¶14 Baker contends that, because the victim's third interview implicated a person other
than Baker--namely, the victim's father--as having sexually abused her, the interview
contained exculpatory information which the State was required to disclose to him prior to
trial. He further contends that the District Court abused its discretion in refusing to declare
a mistrial because the State's failure to provide him with this exculpatory information
violated his right to due process and, as a consequence, denied him a fair trial.
¶15 The prosecution's failure to disclose evidence which is favorable to a defendant
violates due process if the evidence is material to the defendant's guilt or punishment,
regardless of the good or bad faith of the prosecution in failing to disclose. Brady v.
Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218. An
intentional suppression of exculpatory evidence by the prosecution is a per se violation of
due process. State v. Brown, 1999 MT 133, ¶ 24, 294 Mont. 509, ¶ 24, 982 P.2d 468, ¶ 24
(citation omitted). Here, however, it is undisputed that the State's failure to provide Baker
with a transcript of the third interview was negligent, rather than intentional. Where the
prosecution's suppression of evidence is negligent, it does not amount to a violation of due
process unless the evidence is material, of substantial use, vital to the defense and
exculpatory. Brown, ¶ 24 (citation omitted).
¶16 The victim alleged in the third interview that her father had sexually assaulted her.
According to Baker, had the State disclosed this information prior to trial, he would have
been better able to develop the defense that the victim had been sexually assaulted only by
her father, rather than Baker, and that she had been coached by her father to accuse Baker
of the offense. On this basis, he argues that the information in the third interview was
exculpatory in nature and material to his defense. The State responds that its failure to
disclose the interview to Baker prior to trial did not violate his right to due process
because the information in the interview was not material to the case.
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¶17 As stated above, in order to establish that his right to due process was violated by the
State's failure to disclose the third interview prior to trial, Baker must prove that the
information in the interview was material to his case. To satisfy this materiality
requirement, Baker must prove there is a reasonable probability that, had the interview
been disclosed to him prior to trial, the result of the trial would have been different. See,
State v. Buckles, 1999 MT 79, ¶ 11, 294 Mont. 95, ¶ 11, 979 P.2d 177, ¶ 11; State v.
Berger, 1998 MT 170, ¶ 49, 290 Mont. 78, ¶ 49, 964 P.2d 725, ¶ 49. A "reasonable
probability" of a different result is shown where the State's failure to disclose evidence has
the effect of undermining confidence in the outcome of the trial. Buckles, ¶ 11 (citation
omitted); Berger, ¶ 49 (citation omitted).
¶18 As part of its case-in-chief, the State called Sheridan County Sheriff Mike Overland
(Overland), who testified that he interviewed Baker regarding the allegation of sexual
assault. Overland further testified that, during the interview, Baker admitted he had
sexually assaulted the victim and related details of the incident. In light of this evidence,
we conclude there is no reasonable probability that the outcome of the trial would have
been different had the State disclosed the third interview prior to trial. As a result, Baker
has not established that the information in the third interview was material to his case.
¶19 Baker having failed to meet his burden of establishing materiality, we conclude that
his right to due process was not violated by the State's failure to disclose the third
interview prior to trial. Consequently, we hold that the District Court did not abuse its
discretion in denying Baker's motion for a mistrial.
¶20 2. Did the District Court abuse its discretion by failing to grant Baker's motion for a
continuance?
¶21 During his cross-examination of Blewett, Baker moved the District Court for a
continuance of the trial in order to review the transcript of the third interview of the
victim. The court denied the motion, gave Baker a two-hour break in which to review the
transcript, and stated its willingness to reconsider the motion after the break if Baker
determined he needed more time to prepare. After the break, and following the District
Court's denial of his motion for a mistrial, Baker again moved to continue the trial. The
court reserved its ruling until the end of the State's case-in-chief, but never ruled on the
motion. Nor did Baker ever renew, or request the court to rule on, the motion. Baker now
asserts that the District Court abused its discretion in failing to grant a continuance of the
trial. We review a district court's ruling on a motion for a continuance to determine
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whether the court abused its discretion. State v. Root, 1999 MT 203, ¶ 13, 296 Mont. 1, ¶
13, 987 P.2d 1140, ¶ 13.
¶22 Baker argues that the District Court should have granted him a continuance because
he did not have the opportunity to use the information from the third interview of the
victim during cross-examination of the two witnesses who testified prior to his receiving a
transcript of the interview. He further argues that a continuance should have been granted
so that he could interview the victim's father, who also was alleged to have sexually
assaulted the victim. Baker's arguments are unpersuasive.
¶23 While it is true that Baker had not reviewed the interview transcript at the time he
cross-examined Johnson and Blewett, he could have re-called those witnesses after
reviewing the transcript to cross-examine them regarding the victim's third interview. He
did not do so. Furthermore, Baker does not demonstrate what additional information he
would have elicited from those witnesses had he been given additional time to prepare or
how that information may have been important to his case.
¶24 Moreover, although Baker may not have had the opportunity to interview the victim's
father prior to trial, he called the father to testify. The father's testimony was limited,
however, because he was in jail at the time pending his own trial on charges relating to his
alleged sexual assault of his daughter and he refused to answer most of Baker's questions,
relying on his Fifth Amendment right to be free from self-incrimination. Baker fails to
show how a continuance of his trial to have more time to prepare would have allowed him
to elicit any additional information from the victim's father.
¶25 Finally, as noted above, the District Court reserved its ruling on Baker's motion for a
continuance until the end of the State's case-in-chief. After the State rested its case,
however, Baker did not renew, or ask the District Court to rule on, his motion for a
continuance, thus tacitly conceding he did not need additional time to prepare. We
conclude that Baker has failed to establish the necessity for a continuance of his trial. We
hold, therefore, that the District Court did not abuse its discretion by failing to grant
Baker's motion for a continuance.
¶26 3. Did the District Court abuse its discretion in denying Baker's motion for a directed
verdict?
¶27 At the close of the State's case-in-chief, Baker moved the District Court for a directed
verdict, arguing that the State had failed to prove the elements of the offense of sexual
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assault. The court denied the motion and Baker asserts error.
¶28 The question of whether to direct a verdict lies within the sound discretion of the trial
court and will not be disturbed absent an abuse of that discretion. Berger, ¶ 25. We review
a denial of a motion for a directed verdict in the same manner as we review the sufficiency
of the evidence to support a conviction, by examining the evidence in a light most
favorable to the prosecution to determine whether any rational trier of fact could find the
elements of the offense beyond a reasonable doubt. Berger, ¶ 25.
¶29 Baker was charged by information with the offense of sexual assault, in violation of §
45-5-502, MCA. Sexual assault is defined as "knowingly subject[ing] another person to
any sexual contact without consent." Section 45-5-502(1), MCA. Baker does not dispute
that the State presented evidence sufficient for a rational trier of fact to find beyond a
reasonable doubt that he knowingly subjected the victim to sexual contact without
consent. Instead, he points out that the information filed against him alleged that the
victim in this case was less than 16 years old and that he was three or more years older
than the victim, and contends that this allegation is an element of the offense of sexual
assault which the State was required to prove at trial. He further contends that the State
failed to present any evidence regarding his age or that he was three or more years older
than the victim. On that basis, he argues that the State failed to prove the elements of
sexual assault.
¶30 A person convicted of the offense of sexual assault may be sentenced to a term of up
to six months in the county jail or a fine of up to $500, or both. Section 45-5-502(2),
MCA. However, where the victim of a sexual assault is less than 16 years of age and the
offender is three or more years older than the victim, the offender "shall be punished by
life imprisonment or by imprisonment in the state prison for a term of not less than 2 years
or more than 100 years and may be fined not more than $50,000." Section 45-5-502(3),
MCA. Section 45-5-502(3), MCA, merely sets forth age-related circumstances which
enhance the punishment for sexual assault otherwise provided in § 45-5-502(2), MCA.
Those age factors pertain only to the sentencing of a person convicted of sexual assault
and, as a result, we conclude that Baker's age in relation to that of the victim is not an
element of the offense of sexual assault the State was required to prove.
¶31 Baker having conceded that the State presented evidence sufficient to prove beyond a
reasonable doubt that he knowingly subjected the victim to sexual contact without
consent, we hold that the District Court did not abuse its discretion in denying Baker's
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motion for a directed verdict.
¶32 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
Justice W. William Leaphart, specially concurring.
¶33 I disagree with the Court's conclusion that "[s]ection 45-5-502(3), MCA, merely sets
forth age-related circumstances which enhance the punishment for sexual assault
otherwise provided in § 45-5-502(2), MCA." Rather, I would conclude that under the
United States Supreme Court's recent decision, Apprendi v. New Jersey (2000), ___ U.S.
___, 120 S.Ct. 2348, ___ L.Ed.2d___, the difference in age between Baker and the victim
was an element of the offense defined in § 45-5-502(3), MCA.
¶34 The United States Supreme Court's decision in Apprendi should leave no doubt that
the age-related circumstances set forth in § 45-5-502(3), MCA, are an element of the
felony crime of sexual assault. In Apprendi, the defendant, Apprendi, fired bullets into the
home of an African-American family in a town in New Jersey. Apprendi was charged with
shootings on four different dates and with the unlawful possession of various weapons.
None of the charges referred to a New Jersey hate crime statute and none of them alleged
that Apprendi had acted with a racial bias. Pursuant to a plea agreement, Apprendi pleaded
guilty to two counts (3 and 18) of second-degree possession of a firearm for an unlawful
purpose and one count of the third-degree offense of unlawful possession of an
antipersonnel bomb. Under New Jersey law, a second-degree offense carried a penalty
range of five to ten years. However, the state reserved the right to request that the court
impose a higher "enhanced" sentence for one of the second-degree counts "on the ground
that that offense was committed with a biased purpose" under New Jersey's hate crime
statute. Apprendi, 120 S.Ct. at 2352.
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¶35 The trial court held an evidentiary hearing concerning Apprendi's "purpose" in the
shootings. The trial court found by a preponderance of the evidence that Apprendi's
actions were undertaken with an intimidating purpose, as required by New Jersey's hate
crime law, and held that New Jersey's hate crime statute applied. Apprendi was sentenced
to a twelve- year term on count 18 and to shorter, concurrent sentences on the other two
counts. Apprendi, 120 S.Ct. at 2352. Apprendi appealed, arguing in part that due process
required that the state prove to a jury beyond a reasonable doubt the predicate finding of
bias on which his hate crime sentence depended. New Jersey's Supreme Court affirmed his
sentence. See Apprendi v. New Jersey (N.J. 1999), 731 A.2d 485. The United States
Supreme Court granted cert.
¶36 The Court in Apprendi determined that "[a]t stake in this case are constitutional
protections of surpassing importance: the proscription of any deprivation of liberty
without 'due process of law,' Amdt. 14, and the guarantee that '[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury,' Amdt. 6." Apprendi, 120 S.Ct. at 2355. The Apprendi Court undertook a lengthy
review of the history of the right to a jury verdict based on proof beyond a reasonable
doubt and noted that "nothing in this history suggests that it is impermissible for judges to
exercise discretion--taking into consideration various factors relating both to offense and
offender--in imposing a judgment within the range prescribed by statute." Apprendi, 120 S.
Ct. at 2358 (emphasis added).
¶37 However, the Court observed that
[i]f a defendant faces punishment beyond that provided by statute when an offense
is committed under certain circumstances but not others, it is obvious that both the
loss of liberty and the stigma attaching to the offense are heightened; it necessarily
follows that the defendant should not--at the moment the State is put to proof of
those circumstances--be deprived of protections that have, until that point,
unquestionably attached.
Apprendi, 120 S.Ct. at 2359. The Court went on to hold that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63.
¶38 In a discussion that is critical for the present case, the Apprendi Court distinguished its
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decision in McMillan v. Pennsylvania (1986), 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67,
where the court approved a Pennsylvania statute under which "a fact that was not found by
a jury . . . could affect the sentence imposed by the judge." Apprendi, 120 S.Ct. at 2360.
Pennsylvania's "Mandatory Minimum Sentencing Act" provided that if a judge found by a
preponderance of the evidence that a defendant "visibly possessed a firearm" in the
commission of a specified felony, a defendant convicted of such a felony would be subject
to a "mandatory minimum penalty of five years imprisonment." Apprendi, 120 S.Ct. at
2360. The McMillan Court commented that
Section 9712 neither alters the maximum penalty for the crime committed nor
creates a separate offense calling for a separate penalty; it operates solely to limit
the sentencing court's discretion in selecting a penalty within the range already
available to it without the special finding of visible possession of a firearm.
McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2417, 91 L.Ed.2d at 77. The Apprendi Court noted that the
McMillan decision did not "budge from the position that (1) constitutional limits exist to States'
authority to define away facts necessary to constitute a criminal offense and (2) that a state scheme that
keeps from the jury facts that 'expos[e] [defendants] to greater or additional punishment' may raise
serious constitutional concern." Apprendi, 120 S.Ct. at 2360 (citations omitted).
¶39 Further, the Court in Apprendi characterized the distinction between sentencing
factors and elements as "constitutionally novel and elusive." Apprendi, 120 S.Ct. at 2365
(citation omitted). In a footnote, the Apprendi Court determined that "sentencing factor" is
not without meaning but added that
[t]he term appropriately describes a circumstance, which may be either aggravating
or mitigating in character, that supports a specific sentence within the range
authorized by the jury's finding that the defendant is guilty of a particular offense.
On the other hand, when the term "sentence enhancement" is used to describe an
increase beyond the maximum authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than the one covered by the jury's
guilty verdict. Indeed, it fits squarely within the usual definition of an "element" of
the offense.
Apprendi, 120 S.Ct. at 2365 n.19 (citation omitted).
¶40 The Apprendi Court concluded that "the relevant inquiry is one not of form, but of
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effect--does the required finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?" Apprendi, 120 S.Ct. at 2365. The Court
determined that the effect of New Jersey's sentencing enhancement was "unquestionably
to turn a second-degree offense into a first-degree offense. . . . The degree of criminal
culpability the legislature chooses to associate with particular, factually distinct conduct
has significant implications both for a defendant's very liberty, and for the heightened
stigma associated with an offense the legislature has selected as worthy of greater
punishment." Apprendi, 120 S.Ct. at 2365. The Apprendi Court concluded that New
Jersey's sentencing procedure was unconstitutional and "an unacceptable departure from
the jury tradition that is an indispensable part of our criminal justice system." Apprendi,
120 S.Ct. at 2366.
¶41 In the present case, the Court's decision in Apprendi requires that we examine the
effect of the age-related circumstances set forth under § 45-5-502(3), MCA, on the
sentence that § 45-5-502(2), MCA, authorizes. Section 45-5-502, MCA, provides in
pertinent part:
Sexual assault. (1) A person who knowingly subjects another person to any sexual contact
without consent commits the offense of sexual assault.
(2) A person convicted of sexual assault shall be fined not to exceed $500 or be
imprisoned in the county jail for a term not to exceed 6 months, or both.
(3) If the victim is less than 16 years old and the offender is 3 or more years older
than the victim . . . the offender shall be punished by life imprisonment or by
imprisonment in the state prison for a term of not less than 2 years or more than 100
years and may be fined not more than $50,000.
Section 45-5-502, MCA (emphasis added).
¶42 The effect of the District Court's determination that Baker was three or more years
older than the victim (and that she was less than 16 years old) was two-fold. First, the
District Court's finding elevated Baker's punishment from a maximum of six months to a
minimum of two years imprisonment and a maximum of life imprisonment. Second, the
District Court's finding changed Baker's conviction from a misdemeanor to a felony under
Montana law. These consequences cannot be reconciled with the Apprendi Court's
definition of sentencing factors when the District Court's finding did not support a specific
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sentence within the range authorized by the District Court's finding that the defendant is
guilty of violating § 45-5-502(2), MCA. See Apprendi, 120 S.Ct. at 2365 n.19. Moreover,
the District Court's finding had "significant implications" both for Baker's very liberty, and
for the "heightened stigma" associated with an offense of felony sexual assault that the
legislature has selected as worthy of greater punishment. See Apprendi, 120 S.Ct. at 2365.
¶43 It is interesting to note that the Apprendi Court employed the right to a jury trial as the
basis for its decision even though Apprendi entered into a plea agreement, thereby waiving
his right to a jury trial. In contrast, Baker demanded and received a jury trial on the
misdemeanor charge of sexual assault under § 45-5-502, MCA. Thus, in that he actually
exercised his right to a jury trial, Baker fits within the Court's rationale more so than did
Apprendi himself. Furthermore, the fact that the so-called "sentencing factor" transformed
Baker's misdemeanor conviction into a felony punishable by life imprisonment or by
imprisonment for a term of not less than two years, brings the Supreme Court's concern
with liberty and the "heightened stigma associated with an offense the legislature has
selected as worthy of greater punishment" into even sharper focus than under the New
Jersey hate crime statute. The circumstances in Baker's case present a much stronger basis
for the Apprendi rationale than did the circumstances before the Court in Apprendi.
¶44 I would hold that the age-differentiation requirement under § 45-5-502(3), MCA, is
clearly an element of the felony offense of sexual assault, not a mere "sentencing
enhancement" as the Court concludes. However, I would affirm the District Court's
sentence on the ground that substantial credible evidence established that Baker was three
or more years older than the victim when he sexually assaulted her.
/S/ W. WILLIAM LEAPHART
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