State v. Hicks

No. 04-742

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 71

STATE OF MONTANA,

Plaintiff and Respondent,

v.

SHANE A. HICKS,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Blaine, Cause No. DC2004B01
Honorable John C. McKeon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Randy H. Randolph, Attorney at Law, Havre, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana

Yvonne Laird, Blaine County Attorney; Anastasia M.B. Maloney,
Deputy County Attorney, Chinook, Montana

Submitted on Briefs: March 7, 2006

Decided: April 11, 2006

Filed:

__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the
Court.

¶1 Shane A. Hicks (Hicks) appeals from the judgment entered

by the Seventeenth Judicial District Court, Blaine County, on

his conviction and sentence for the offense of sexual

intercourse without consent. We affirm in part, reverse in
part and remand for resentencing.

¶2 We address the following issues on appeal:

¶3 1. Did sufficient evidence support the jury’s guilty

verdict on Count II, sexual intercourse without consent?

¶4 2. Did the District Court abuse its discretion in

denying Hicks’ motion to exclude certain of the prosecution’s
proposed exhibits?

¶5 3. Did the District Court err in denying Hicks’ motions

to dismiss?

¶6 4. Did the prosecution violate Hicks’ constitutional

right to due process by failing to provide him with
discoverable information?

¶7 5. Did the District Court abuse its discretion in

denying Hicks’ motion for a new trial?

¶8 6. Did the District Court err in sentencing Hicks?
BACKGROUND

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¶9 In February of 2004, the State of Montana (State) charged

Hicks by information with two counts of felony sexual

intercourse without consent in violation of § 45-5-503(1),
MCA. The information alleged in Count I that Hicks had sexual

intercourse with S.H., without her consent, at approximately

8:00 a.m. on February 14, 2004. The information alleged in

Count II that Hicks had sexual intercourse with S.H., without

her consent, at approximately 12:00 p.m. on February 14, 2004.
Hicks pled not guilty to both counts.

¶10 A jury trial was held on June 16, 17 and 18, 2004.

During trial, Hicks twice moved to dismiss the charges against
him on the basis that S.H. had testified falsely during trial

and had asked her sister to lie to law enforcement
authorities. The District Court denied both motions to

dismiss. At the close of the State’s case-in-chief, Hicks

moved for a directed verdict on the basis that the State had

failed to meet its burden of proof as to either charge. The
District Court denied this motion as well. The jury

eventually returned a verdict finding Hicks not guilty on

Count I and guilty on Count II. The District Court scheduled

a sentencing hearing and ordered the preparation of a

presentence investigation report (PSI). The court also

ordered Hicks to undergo a psychosexual evaluation for

purposes of sentencing.
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¶11 Following trial, Hicks moved the District Court for a new

trial, asserting newly discovered exculpatory evidence and the

jury’s failure to apply the appropriate burden of proof during
its deliberations. On September 27, 2004, the District Court

held a combined hearing on the motion for a new trial and

sentencing. The court first heard testimony and argument

regarding Hicks’ motion for a new trial and denied it. The

court then heard testimony and argument regarding sentencing.
The District Court subsequently sentenced Hicks to the
Montana Department of Corrections (DOC) for a term of 14

years, with recommendations that Hicks complete various

programs and evaluations while incarcerated. The court also

imposed numerous conditions in the event Hicks was released on
parole. The District Court entered judgment on the conviction

and sentence. Hicks appeals.
DISCUSSION

¶12 1. Did sufficient evidence support the jury’s guilty
verdict on Count II, sexual intercourse without consent?

¶13 We review the sufficiency of the evidence to support a

guilty verdict in a criminal case to determine whether, upon
reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the charged offense beyond a reasonable

doubt. State v. Kuipers, 2005 MT 156, ¶ 6, 327 Mont. 431, ¶

4
6, 114 P.3d 1033, ¶ 6. Hicks argues that insufficient

evidence supports the jury’s guilty verdict on Count II

because the State failed to present evidence establishing that
this offense occurred at approximately 12:00 p.m. on the date

in question as alleged in the information.

¶14 As stated above, the State’s information alleged in Count

I that Hicks had sexual intercourse with S.H., without her

consent, at approximately 8:00 a.m. on February 14, 2004, and
in Count II that Hicks had sexual intercourse with S.H.,
without her consent, at approximately 12:00 p.m. on that same

day. Hicks contends with regard to Count II that S.H. did not

know what time the second incident occurred and the State

provided no other evidence to suggest any particular time at
which that incident occurred. However, S.H. testified several
times on both direct and cross-examination at trial that the

second incident of sexual intercourse occurred at

approximately 12:00 p.m. Additionally, Hicks testified that

he left the house after the first incident of consensual

sexual intercourse, went to work for a couple of hours,

returned to the house at around noon, ate lunch and the two
had consensual sexual intercourse again shortly thereafter.

We conclude sufficient evidence was presented on which the

jury could find beyond a reasonable doubt that the incident of

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sexual intercourse without consent charged in Count II

occurred at approximately 12:00 p.m. on the day in question.

¶15 Hicks also observes that “the two alleged offenses are

virtually identical except as to the time the offenses were

alleged to occur and the location in the home,” and contends,

on that basis, that it was inconsistent for the jury to find
reasonable doubt as to Count I of the information but convict

him on Count II. We disagree. Generally, consistency in jury

verdicts is not required. State v. Bailey, 2003 MT 150, ¶ 12,

316 Mont. 211, ¶ 12, 70 P.3d 1231, ¶ 12. Rather, “the
question is not whether a criminal jury’s verdict is
inconsistent, but whether the verdict is supported by

sufficient evidence.” Bailey, ¶ 13. Where an information

alleges separate acts as separate offenses, a conviction or

acquittal on one charge does not affect the other charges.
State v. Azure, 2002 MT 22, ¶ 48, 308 Mont. 201, ¶ 48, 41 P.3d

899, ¶ 48.

¶16 Here, the information alleged two separate acts of sexual

intercourse without consent occurring at two separate times on

the same day. The District Court instructed the jury that it

must decide each count separately and find the defendant

guilty or not guilty as to each count. The jury also was

instructed that, as to each charged offense, it must find that

the State proved beyond a reasonable doubt that Hicks had
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sexual intercourse with S.H., that the intercourse was without

S.H.’s consent and that Hicks acted knowingly. Hicks does not

dispute that he and S.H. had sexual intercourse on two
separate occasions on that day, but he contended at trial that

S.H. consented to both acts. S.H. testified that she did not

consent to either act. The jury weighed the conflicting

testimony and found that the State had not proved beyond a

reasonable doubt the first count of sexual intercourse without
consent, but had proved beyond a reasonable doubt the second
count of sexual intercourse without consent.

¶17 We hold sufficient evidence supported the jury’s guilty

verdict on Count II, sexual intercourse without consent.

¶18 2. Did the District Court abuse its discretion in
denying Hicks’ motion to exclude certain of the State’s
proposed exhibits?

¶19 A district court has broad discretion in determining the

relevance and admissibility of evidence. State v. Flowers,
2004 MT 37, ¶ 19, 320 Mont. 49, ¶ 19, 86 P.3d 3, ¶ 19.

Consequently, we will not overturn a district court’s
evidentiary ruling absent a showing of abuse of discretion.

Flowers, ¶ 19.

¶20 On the morning of the first day of trial, Hicks moved to
exclude all of the State’s proposed exhibits on the basis that

the State had failed to provide him with an exhibit list 20

days before trial as the District Court ordered at the omnibus
7
hearing. The State conceded it had not provided Hicks with

the required exhibit list, but contended Hicks was aware of

the exhibits well prior to trial, had been provided copies of
the exhibits and knew the State intended to introduce the

exhibits at trial. Consequently, according to the State,

Hicks would not be unfairly surprised or prejudiced by

admitting the exhibits into evidence. The State’s proposed

exhibits consisted of two audio tapes of Hicks’ statement to
law enforcement on the day he was arrested and eight
photographs. The District Court excluded two of the

photographs because the copies provided to Hicks failed to

accurately reflect the contents of the originals, but denied

Hicks’ motion to exclude the two audio tapes and the remaining
six photographs.

¶21 Hicks contends the District Court abused its discretion

in denying his motion to exclude the State’s exhibits. He
asserts generally that admission of the exhibits at trial

constituted unfair surprise and “was so highly prejudicial as
to warrant this matter being remanded to district court for a

new trial, or dismissed in its entirety.” Pursuant to § 46-

20-701(2), MCA, we must disregard any asserted error, defect

or irregularity in a criminal proceeding which does not affect
the defendant’s substantive rights. Where a defendant does

not establish that the admission of challenged evidence or
8
testimony was prejudicial to the defense, the defendant cannot

meet the statutory standard requiring that the alleged error

affect the defendant’s substantive rights. See State v.
Boettiger, 2004 MT 313, ¶¶ 16-17, 324 Mont. 20, ¶¶ 16-17, 101

P.3d 285, ¶¶ 16-17. Here, Hicks’ conclusory statement that

admission of the State’s exhibits was prejudicial, with no

reference to specific exhibits or analysis of why the exhibits

were prejudicial, is insufficient to establish that the
District Court’s alleged error affected Hicks’ substantive
rights.

¶22 Additionally, Hicks does not support his argument here with citation to any legal

authority as required by Rule 23(a)(4), M.R.App.P. “It is the appellant’s burden to establish

error by a district court and such error cannot be established in the absence of legal

authority.” State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26.

Furthermore, “it is not this Court’s obligation to conduct legal research on appellant’s behalf,

to guess as to his precise position, or to develop legal analysis that may lend support to his

position.” In re Estate of Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶

19.

¶23 We conclude Hicks has failed to establish that admission of the State’s exhibits at trial

prejudiced him. We hold, therefore, that the District Court did not abuse its discretion in

denying Hicks’ motion to exclude certain of the State’s proposed exhibits.

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¶24 3. Did the District Court err in denying Hicks’ motions

to dismiss?

¶25 Following the State’s direct examination of S.H. at

trial, Hicks moved the District Court to dismiss the case. He

argued that S.H. had provided false testimony in that her
trial testimony was inconsistent with statements she made to

medical personnel, law enforcement officers and defense

counsel at various times prior to trial. The District Court

denied the motion, stating that Hicks would have the

opportunity to cross-examine S.H. regarding any inconsistent
statements. At the close of the State’s case-in-chief, Hicks
renewed his motion to dismiss on the same basis. The District

Court concluded that the evidence of S.H.’s inconsistent

statements went to her credibility, and witness credibility

was a question for the jury to determine. The court again
denied the motion to dismiss. Hicks asserts error. A

district court’s ruling on a motion to dismiss in a criminal
case constitutes a question of law which we review to

determine whether the court’s conclusion of law is correct.

State v. Mallak, 2005 MT 49, ¶ 13, 326 Mont. 165, ¶ 13, 109

P.3d 209, ¶ 13.

¶26 Hicks claims that S.H. knowingly testified falsely at

trial and this false testimony violated his constitutional

right to due process, requiring dismissal of the charges
10
against him. To prevail on such a claim, Hicks must establish

that S.H.’s testimony was actually false, her testimony was

material to the verdict and the State knew or believed her
testimony to be false. Gratzer v. State, 2003 MT 169, ¶ 11,

316 Mont. 335, ¶ 11, 71 P.3d 1221, ¶ 11 (citations omitted).

In his brief on appeal, however, Hicks states that either

S.H.’s testimony at trial was false or her prior statements to

law enforcement were false. By making such an either/or
statement, Hicks implicitly concedes he cannot establish that
S.H.’s trial testimony was actually false. Consequently,

Hicks fails to establish a violation of his due process rights

resulting from false trial testimony.

¶27 It is well-established that the credibility of witnesses

and the weight to be given their testimony is within the
province of the trier of fact, and disputed questions of

witness credibility will not be disturbed on appeal. See,
e.g., State v. York, 2003 MT 349, ¶ 12, 318 Mont. 511, ¶ 12,

81 P.3d 1277, ¶ 12 (citing State v. Bauer, 2002 MT 7, ¶ 15,

308 Mont. 99, ¶ 15, 39 P.3d 689, ¶ 15). At trial, Hicks

cross-examined S.H. extensively regarding the inconsistencies
between her trial testimony and her prior statements to

medical personnel, law enforcement and defense counsel. Hicks

also questioned other witnesses regarding S.H.’s prior

statements to them to further highlight the inconsistencies in
11
her story. Defense counsel also spent a large part of his

closing argument reinforcing these inconsistencies to the

jury.

¶28 Moreover, the District Court instructed the jurors that

they were the sole judges of witness credibility and gave them

guidance in how to judge the credibility of witnesses. The

instructions also informed the jurors that, if they believed a
witness testified falsely, they must disregard such false

testimony and could view the remainder of that witness’s

testimony with distrust. Indeed, the jury’s not guilty

verdict on Count I indicates that the jury followed the
court’s instructions and found some of S.H.’s testimony not
credible.

¶29 We conclude the District Court correctly determined that

the inconsistencies between S.H.’s trial testimony and her
prior statements went to the weight and credibility of her

testimony, and was properly left to the jury. We hold,

therefore, that the District Court did not err in denying
Hicks’ motions to dismiss.

¶30 4. Did the State violate Hicks’ constitutional right to
due process by failing to provide him with discoverable
information?

¶31 During the State’s redirect examination at trial, S.H.

testified the prosecutor had suggested prior to trial that

preparing a time line of the events that occurred on the date
12
in question might assist her in recalling the specific times

in the day the events occurred. Defense counsel then

questioned S.H. further regarding this time line and she
stated she had written a five-page document recording her

recollections about that day. S.H. further testified that,

although she did not have the document with her at trial, she

could bring it to defense counsel later that day. Defense

counsel did not object to the State’s failure to provide the
defense with a copy of this document, and the record contains
no further reference to this document. Additionally, the

probation officer who prepared the PSI appended to the report

a victim impact statement written by S.H. prior to trial, and

given to her counselor and victim advocate. Hicks did not
receive a copy of this statement until he received the PSI,

but did not object to the State’s failure to provide him with
this statement earlier.

¶32 On appeal, Hicks argues that the State’s failure to

provide him with these two documents during pretrial discovery
violates the State’s disclosure obligations as set forth in §

46-15-322, MCA, and violates his due process rights, requiring

either a new trial or dismissal of the case against him. The

State responds that Hicks waived his right to raise this issue

on appeal by failing to object in the District Court.

13
¶33 The failure to raise a timely objection during trial

generally constitutes a waiver of that objection on appeal.

Section 46-20-104(2), MCA. We will not consider on appeal
issues not raised in the trial court because it is unfair to

fault the trial court for any error which it was never given

the opportunity to correct. State v. Gouras, 2004 MT 329, ¶

26, 324 Mont. 130, ¶ 26, 102 P.3d 27, ¶ 26. As stated

above, Hicks did not object in the District Court to the
State’s failure to disclose either of the two pretrial
documents and, as a result, he has waived his right to raise

this issue on appeal. Consequently, we refuse to address this

issue further.

¶34 5. Did the District Court abuse its discretion in
denying Hicks’ motion for a new trial?

¶35 Hicks moved the District Court for a new trial based, in

part, on his allegation that the jury applied an incorrect
standard of proof during its deliberations and, as a result,

failed to find him guilty beyond a reasonable doubt. At the

hearing on his motion, Hicks called one of the jurors to

testify regarding the jury’s application of the beyond a

reasonable doubt standard of proof. The State objected,
asserting that the proposed juror testimony was improper under

Rule 606(b), M.R.Evid. The District Court allowed the juror to

testify, but limited Hicks’ inquiry to only those topics

14
allowed under Rule 606(b). After hearing the juror’s

testimony and the parties’ arguments, the District Court

concluded Hicks had failed to present evidence that the jury
applied an incorrect standard of proof and denied Hicks’

motion for a new trial on that basis. Hicks asserts error.

We generally review a district court’s ruling on a motion for

a new trial to determine whether the court abused its

discretion. State v. Clark, 2005 MT 330, ¶ 39, 330 Mont. 8, ¶
39, 125 P.3d 1099, ¶ 39.

¶36 Rule 606(b), M.R.Evid., provides that, when there is an

inquiry into the validity of a verdict, “a juror may not
testify as to any matter or statement occurring during the

course of the jury’s deliberations or to the effect of
anything upon that or any other juror’s mind or emotions as

influencing the juror to assent or dissent from the verdict .

. . or concerning the juror’s mental processes in connection

therewith.” The Rule provides three exceptions to this

general prohibition against a juror testifying:
a juror may testify and an affidavit or evidence of
any kind be received as to any matter or statement
concerning only the following questions, whether
occurring during the course of the jury’s
deliberations or not: (1) whether extraneous
prejudicial information was improperly brought to
the jury’s attention; or (2) whether any outside
influence was brought to bear upon any juror; or (3)
whether any juror has been induced to assent to any
general or special verdict, or finding on any

15
 question submitted to them by the court, by a resort
to the determination of chance.

¶37 At the hearing on his motion for a new trial, Hicks

contended that the testimony he wished to elicit from the

juror fell within the second and third exceptions in Rule

606(b). To that end, he asked the juror whether any outside
influence may have effected the jury’s decision and the juror

responded no. He then asked the juror whether the jury

resorted to any determination of chance in deciding to convict

on one count and acquit on the other. The juror responded
that “we, you know, all kind of went through all of the
factors and stuff, and that’s just what we decided. I mean,

it wasn’t just throw a coin in the air and say okay, we’ll

just go that way.” The State objected to the remainder of

Hicks’ questions to the juror as being outside the scope of
the Rule 606(b) exceptions and attempting to elicit improper

testimony regarding the jury’s mental processes and matters
occurring during deliberations. The District Court sustained

all of the State’s objections. As a result, Hicks was unable

to elicit any testimony from the juror regarding the standard
of proof the jury applied in reaching its verdict.

¶38 Hicks contends that the District Court erred in limiting
his questioning of the juror pursuant to Rule 606(b),

M.R.Evid. He asserts that he “has a constitutional right to

16
have his guilt proven beyond a reasonable doubt, and the

refusal to allow the juror to testify regarding the ultimate

issue of the jury, the burden of proof, denies [him] his
constitutional right to such a burden.” He further asserts

that such questioning does not violate the Rule 606(b)

prohibition against testimony regarding the jury’s mental

processes during deliberation. However, Hicks provides no

legal authority in support of this proposition as required by
Rule 23(a)(4), M.R.App.P. Consequently, we conclude Hicks has
not established that the District Court improperly limited his

questioning of the juror, and decline to address this issue

further.

¶39 We hold that the District Court did not abuse its

discretion in denying Hicks’ motion for a new trial.

¶40 6. Did the District Court err in sentencing Hicks?

¶41 We review a sentence in a criminal case for legality,

determining whether the sentence is within statutory

parameters. State v. Ruiz, 2005 MT 117, ¶ 8, 327 Mont. 109, ¶

8, 112 P.3d 1001, ¶ 8. A district court’s authority in
sentencing a criminal defendant is defined and constrained by

statute, and the court has no power to impose a sentence in

the absence of specific statutory authority. Ruiz, ¶ 12.

Consequently, “[a] sentence not based on statutory authority
is an illegal sentence.” Ruiz, ¶ 12.
17
¶42 Pursuant to § 45-5-503(2), MCA (2003), “[a] person

convicted of sexual intercourse without consent 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 . . . .” In

addition, § 46-18-201(3)(d)(i), MCA (2003), provides that a

sentencing court may impose a sentence which includes

commitment of the defendant to the DOC, but that “all but the
first 5 years of the commitment to the [DOC] must be suspended
. . . .”

¶43 The District Court sentenced Hicks to a 14-year

commitment to the DOC and did not suspend any portion of the
sentence. Hicks contends that his sentence is illegal because

it violates the express provisions of the sentencing statutes.

Hicks further asserts that, to remedy this illegality in his
sentencing, we should modify his sentence to a 14-year

commitment to the DOC with all but five years suspended. In
response, the State concedes that the District Court imposed a

sentence in excess of its statutory authority by not

suspending any portion of Hicks’ 14-year commitment to the

DOC. It asserts, however, that the appropriate remedy in this

instance is to remand to the District Court for resentencing.

¶44 We have refrained from adopting a single rule regarding
the appropriate remedy for a partially illegal sentence.
18
Generally, where the illegal portion of a sentence relates to

a condition of a suspended sentence or a sentence enhancement,

we have vacated or remanded with instructions to strike the
offending provision. State v. Heath, 2004 MT 58, ¶ 49, 320

Mont. 211, ¶ 49, 89 P.3d 947, ¶ 49. However, where the

illegal portion of a sentence affects the entire sentence or

we are unable to determine what sentence the trial court would

have imposed under a correct application of the law, we
generally remand for resentencing. Heath, ¶ 49. Thus, a
determination of the appropriate remedy involves an

examination of the sentence and record in each case. Heath, ¶

49.

¶45 Here, the District Court imposed a lengthy, albeit

illegal, sentence to the DOC. Because Hicks continued to deny
committing the offense, the court ordered him to complete

while incarcerated a sexual offender treatment program
specifically designed to treat offenders who deny guilt. The

court also ordered that, should he become eligible, Hicks must

complete both Phase I and Phase II of the Montana State Prison

sexual offender treatment program. The court further
recommended that, while incarcerated, Hicks complete an

evaluation by a neuropsychologist or neuropsychiatrist to

determine the existence of possible mental or personality

disorders, complete a chemical dependency evaluation, complete
19
a cognitive and behavioral modification program, and complete

an anger management course dealing with violent criminal

behaviors. The reasons stated by the District Court for its
sentence were the seriousness of the offense, the youth of the

victim in comparison to Hicks’ age, Hicks’ extensive criminal

history, his history of failed community supervision, his

history of drug and alcohol abuse, his documented disrespect

for the rules of the facility in which he was incarcerated
while awaiting trial and sentencing, his attempted
intimidation of the victim and her family, his uncontrolled

anger and aggressive behaviors, and the interests of community

safety in avoiding releasing an untreated convicted sex

offender who refuses treatment.

¶46 It is apparent from the record before us that the

District Court concluded a lengthy period of incarceration was
necessary to control Hicks, as well as to provide him with the

opportunity to receive appropriate evaluations and complete

various treatment programs. We are unable to determine,

however, whether the District Court would consider a 14-year

sentence, with 9 years suspended, an adequate period of
incarceration to complete the recommended tasks. As a result,

we cannot discern what sentence the District Court would

impose under a correct application of the sentencing statute
and, as a result, we conclude the illegal portion of Hicks’
20
sentence affects the entirety of the sentence. We hold the

District Court erred in sentencing Hicks to the DOC for a term

of 14 years with no time suspended and, therefore, we reverse
Hicks’ sentence and remand for resentencing.

¶47 Finally, Hicks contends that he has not been given credit

for time served in the Hill County detention center following

the date of his sentencing. Because we are remanding this
case to the District Court for resentencing, we conclude the

District Court should address Hicks’ concerns in this regard

at resentencing.

¶48 Affirmed in part, reversed in part and remanded for

resentencing.

/S/ KARLA M. GRAY

We concur:

/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE
/S/ JAMES C. NELSON

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