State v. Dasen

No. 05-708

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 87

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RICHARD A. DASEN, SR.,

Defendant and Appellant.

APPEAL FROM: The District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-04-071(c),
Honorable Stewart E. Stadler, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Daniel Donovan, Thompson, Potts & Donovan, P.C., Great Falls, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana

Ed Corrigan, County Attorney; Dan Guzynski and Lori Adams,
Deputy County Attorneys, Kalispell, Montana

Submitted on Briefs: January 4, 2007

Decided: April 3, 2007

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Defendant Richard Dasen appeals his conviction of promotion of prostitution (a

felony), sexual abuse of children (a felony), and three felony counts of prostitution. We

affirm.

¶2 We restate the issues as follows:

¶3 I. Did the District Court err in concluding that the second search warrant was

valid because it was based on a source independent of the first, unconstitutional search?

¶4 II. Did the District Court give sufficient unanimity jury instructions for Counts III

and IV?

¶5 III. Were the second or subsequent prostitution counts (Counts VI, XII, XIV)

properly charged as felonies?

¶6 IV. Did the District Court prevent Dasen from presenting a “mistake of age”

defense to the jury?

BACKGROUND

¶7 Dasen was arrested on February 24, 2004, and charged with sexual intercourse

without consent. Dasen pled not guilty. During pretrial proceedings, the State twice

amended the information to add additional charges against Dasen. The third, and final,

amended information charged the following counts: (I) sexual intercourse without

consent; (II) aggravated promotion of prostitution; (III) promotion of prostitution; (IV)

sexual abuse of children; (V) misdemeanor prostitution; (VI) through (XIV) felony

prostitution (each count against separate, named victims).

2
¶8 Following an eighteen-day trial and over ten hours of deliberation, the jury

convicted Dasen of Counts III, IV, V, VI, XII, XIV. The District Court imposed a two-

year sentence without the possibility of parole for Count XIV as well an eighteen-year

suspended sentence for the remaining counts. The court also imposed a fine of $11,350

and restitution of $1,125. Dasen subsequently filed a timely notice of appeal.

¶9 Additional, issue specific facts are set out below.

DISCUSSION

¶10 I. Did the District Court err in concluding that the second search warrant

was valid because it was based on a source independent of the first, unconstitutional

search?

¶11 A. Applicable Facts

¶12 On February 11, 2004, the State applied for search warrants for Dasen’s residence

and two businesses in which Dasen had an interest. After finding that probable cause

existed, Judge Stadler issued three search warrants. Although the applications

particularly described the items to be seized, the warrants themselves did not. When the

warrants were served, the officers did not present the warrant applications. Accordingly,

neither the warrants nor any accompanying documents particularly described the items to

be seized. Two weeks later the United States Supreme Court held, in Groh v. Ramirez,

540 U.S. 551, 124 S. Ct. 1284 (2004), that if the application is not served with the

warrant, the warrant itself must particularly describe the items to be seized.

¶13 Two days after Groh was decided, one of Dasen’s businesses filed a motion

requesting that the court order the seized property returned in light of Groh. Following a

3
show cause hearing on March 2, 2004, the court ordered all items returned. Later that

same day and the next, the State submitted a second round of warrant applications to the

court administrator. Although Judge Stadler was the presiding judge, the applications

were reviewed and approved by Judge Curtis, a fellow Eleventh Judicial District Court

Judge. Judge Stadler, anticipating a second warrant application in light of the original

warrant’s invalidity, had requested that the court administrator submit any new

applications to one of the other district court judges “to insure and guarantee an

independent review.”

¶14 The State returned the previously seized items and re-seized them pursuant to the

second, facially valid search warrant which particularly described the items to be seized.

Dasen, however, in a motion to suppress, argued that the second search warrant was

invalid because it was fruit of the poisonous tree—that is, it was a product of the first,

invalid search. Dasen also contended that Judge Curtis had no jurisdiction to approve the

warrant because she had previously been substituted at Dasen’s request pursuant to § 3-1-

804, MCA. Judge Stadler disagreed, concluding that the evidence necessary to show

probable cause for the second warrant was obtained from a source independent of the first

search and thus met an exception to the exclusionary rule. Dasen appeals the denial of

his motion to suppress.

¶15 B. Standard of Review

¶16 We review a district court’s denial of a motion to suppress to assess whether there

is substantial credible evidence to support the court’s findings of fact, and whether those

4
findings were correctly applied as a matter of law. State v. Therriault, 2000 MT 286,

¶ 24, 302 Mont. 189, ¶ 24, 14 P.3d 444, ¶ 24.

¶17 C. Was the second warrant based on information from an independent source?

¶18 Dasen argues that it is not possible that the second search warrant was independent

from the first, because the taint of the first search could not be “purged.” The State held

and analyzed the property for almost one month before returning it, only to immediately

re-seize the property under the second search warrant. Further, the State concealed its

plans from Judge Stadler and Dasen. Finally, Dasen contends that even if the second

search was valid under federal law, the “highly irregular circumstances” do not pass

constitutional muster under Montana’s stronger right to privacy. According to Dasen, all

items seized in the second search constitute “fruit of the poisonous tree” and must be

suppressed.

¶19 The “fruit of the poisonous tree” doctrine forbids the use of evidence which comes

to light as a result of the exploitation of an initial illegal act of the police. Therriault,

¶ 57. However, following federal case law, we have set forth three exceptions to this

doctrine. The evidence is admissible if it is (1) attenuated from the constitutional

violation so as to remove its primary taint; (2) obtained from an independent source; or

(3) determined to be evidence which would have been inevitably discovered apart from

the constitutional violation. Therriault, ¶ 58.

¶20 The United States Supreme Court analyzed the independent source doctrine in the

context of a second search pursuant to a warrant that was preceded by an initial, unlawful

search in Murray v. U.S., 487 U.S. 533, 108 S. Ct. 2529 (1988). The defendant argued,

5
as does Dasen, that the independent source exception should not apply to the second

search. Murray, 487 U.S. at 537, 108 S. Ct. at 2533. The Court, however, concluded “if

that later acquisition was not the result of the earlier entry there is no reason why the

independent source doctrine should not apply.” Invoking the exclusionary rule would put

the police not in the same position, as federal and Montana case law require, but in a

worse position. Murray, 487 U.S. at 541, 108 S. Ct. at 2535 (citations omitted); see also

Therriault, ¶ 57. “The ultimate question, therefore, is whether the search pursuant to

warrant was in fact a genuinely independent source of the information and tangible

evidence at issue . . . .” Murray, 487 U.S. at 542, 108 S. Ct. at 2536. The Court does

note, however, that genuine independence “may well be difficult to establish where the

seized goods are kept in the police’s possession.” Murray, 487 U.S. at 542, 108 S. Ct. at

2535.

¶21 Here, the information provided to secure the second warrant was information the

State obtained prior to the first search warrant, as well as information obtained from

additional sources not connected to or derived from the first search. The State submitted

the same information used to secure the first search warrant, which was obviously

obtained without the information gained in the first search. Further, the few new pieces

of information submitted were independently obtained as well, such as details provided

by one of the victim’s grandmother, and information concerning a wire transfer known to

the State prior to the first search. Finally, while the first search was a factor in obtaining

the second search warrant, in that the invalidity of the first search necessitated a second

6
warrant, the State nevertheless possessed sufficient independent information to “purge

the taint” of the first search. See Therriault, ¶ 59.

¶22 We conclude, therefore, that the information used to secure the second warrant

was ascertained through sources sufficiently independent of the first, invalid search to

preclude application of the “fruit of the poisonous tree” doctrine.

¶23 D. Did Judge Curtis have jurisdiction to issue the second search warrant?

¶24 Dasen also argues that Judge Curtis had no power to issue the second warrant

because she lost jurisdiction when substituted pursuant to § 3-1-804, MCA. The second

warrant was therefore, according to Dasen, void ab initio.

¶25 Dasen cites to our holding in Erickson v. Hart, 231 Mont. 7, 9, 750 P.2d 1089,

1091 (1988), for the proposition that after substitution, a district court judge has no

jurisdiction to issue findings or orders. However, Erickson is distinguishable from the

situation here. The judge in Erickson issued an order temporarily adjudicating ownership

of the property at issue in the case, after one of the parties had moved for substitution.

Erickson, 231 Mont. at 9, 750 P.2d at 1091. A search warrant, however, is not a

“finding” or an “order” as contemplated by our holding in Erickson. A search warrant

may be issued by any “district judge within this state.” Section 46-5-220(2)(b), MCA.

Further, Judge Stadler intentionally requested that the court administrator submit the

application for the second search warrant to another judge to ensure an independent

review. Consequently, Judge Curtis issued the second search warrant with the authority

of acting Judge Stadler, pursuant to his powers under § 3-1-113, MCA (allowing a judge

7
to adopt “any suitable process or mode of proceeding . . . which may appear most

conformable to the spirit of this code”).

¶26 Dasen also points to our holding in State v. Vickers, 1998 MT 201, 290 Mont. 356,

964 P.2d 756, for his contention that a warrant issued by a judge who is not “properly

appointed” is void ab initio. Again, this case is inapplicable. In Vickers, we held that an

improperly appointed substitute justice of the peace, who had no power to act at all, could

not issue a valid search warrant. Vickers, ¶ 29. Judge Curtis, however, like all properly

elected district court judges in the state, had general authority to issue search warrants

pursuant to § 46-5-220(2)(b), MCA.

¶27 Judge Curtis thus had jurisdiction to issue the second search warrant.

Accordingly, we conclude that the District Court properly denied Dasen’s motion to

suppress.

¶28 II. Did the District Court give sufficient unanimity jury instructions for

Counts III and IV?

¶29 A. Applicable Facts

¶30 The final amended complaint charged Dasen, under Count III, with promotion of

prostitution, and under Count IV, with sexual abuse of children. Count III specifically

charged that “[Dasen], on or between July 1, 1999 and February 7, 2004 . . . purposely or

knowingly encouraged, induced or otherwise causing [sic] another to become or remain a

prostitute . . . .” Count III then listed sixteen “principle [sic] witnesses/victims in support

of [the charge].” Count IV specifically charged that “[Dasen], on or between October 1,

2003 and February 1, 2004 . . . knowingly photographed, filmed or recorded children

8
engaged in sexual conduct, namely, V.H. (DOB: 1/14/86) and/or K.E. (DOB: 5/22/87)

. . . .”

¶31 At trial, the court gave a Weaver unanimity instruction for Count III. See State v.

Weaver, 1998 MT 167, ¶ 39, 290 Mont. 58, ¶ 39, 964 P.2d 713, ¶ 39. A specific

unanimity instruction was not provided, however, for Count IV, although a general

unanimity instruction applicable to all charges was given. During the in-chambers

discussion concerning jury instructions, Dasen suggested “wouldn’t it be more proper for

us to put the names of the people with regard to all of the counts.” The court disagreed,

and pointed out that a “Weaver instruction” was being given as to Count III. Dasen did

not object, but instead replied “[y]our’re right, I agree.”

¶32 The jury then convicted Dasen on Counts III and IV. Dasen appeals the

convictions, claiming that the jury was not adequately instructed as to the requirement

that there be a unanimous verdict concerning the identity of the victims.

¶33 B. Standard of Review

¶34 We review jury instructions to determine whether the instructions, as a whole,

fully and fairly instruct the jury on the law applicable to the case. Further, we recognize

that a district court has broad discretion when it instructs a jury. Weaver, ¶ 28 (citations

omitted).

¶35 C. Discussion

¶36 Dasen contends that the jury was not instructed to unanimously agree as to the

victim for Counts III and IV.

9
¶37 We have consistently held that we will not consider issues raised for the first time

on appeal. Weaver, ¶ 24 (citations omitted). Here, while Dasen generally suggested

listing the victims for each count, he failed to specifically argue that a unanimity

instruction regarding the identity of the victims was necessary. He also agreed with the

court that the problem was sufficiently addressed by the Weaver instruction. Dasen,

therefore, failed to raise the issue below.

¶38 Nonetheless, Dasen requests that we consider the issue on appeal under the plain

error doctrine. This Court may discretionarily review claimed errors that implicate a

criminal defendant’s fundamental constitutional rights, even if no contemporaneous

objection is made, where failing to review the claimed error may: (1) result in a manifest

miscarriage of justice; (2) leave unsettled the question of the fundamental fairness of the

trial or proceedings; or (3) compromise the integrity of the judicial process. Weaver, ¶ 25

(citations omitted). We utilize plain error review sparingly, on a case-by-case basis.

Weaver, ¶ 25 (citations omitted).

¶39 The right to a unanimous jury verdict represents a fundamental right. Weaver,

¶ 26. In Weaver, we determined that uncertainty about a unanimous verdict brings into

question the fundamental fairness of a trial. Weaver, ¶ 27. We went on to provide two

sample instructions for situations where, as in Weaver, there is the possibility of jury

confusion in regards to a unanimous verdict. Weaver, ¶ 39.

¶40 1. Count III

¶41 Here, the court gave the Weaver instruction for Count III. The instruction read:

10
 The Defendant is charged [with promotion of prostitution]. In order to find
the Defendant guilty, it is necessary for the prosecution to prove beyond a
reasonable doubt the commission of a specific act constituting the crime
within the period alleged. And, in order to find the Defendant guilty, you
must unanimously agree upon the commission of the same specific act
constituting the crime within the period alleged. It is not necessary that the
particular act or acts committed so agreed upon be stated in the verdict.

Emphasis added. Dasen contends this instruction failed to properly inform the jury that it

needed to unanimously agree as to the victim of promotion of prostitution as well as to a

specific act. However, the jury was required to “unanimously agree upon the

commission of the same specific act.” In order to agree upon the same specific act, the

jury necessarily had to agree upon a particular time, victim, and criminal act. The

Weaver instruction left no room for uncertainty about whether the jury reached a

unanimous verdict concerning the victim of Count III, because “juries are presumed to

follow the law as given them.” State v. Turner, 262 Mont. 39, 55, 864 P.2d 235, 245

(1993) (citations omitted). As to Count III, the criteria for plain error review have thus

not been met.

¶42 2. Count IV

¶43 While a Weaver instruction was not given for Count IV, the charge of sexual

abuse of children is specific enough that there was no chance of jury confusion. The

charge involved a single criminal episode, which occurred at a given location with two

discrete victims (K.E. and V.H.), and the State properly viewed and charged the crime as

one offense. The jury only needed to find that Dasen had knowledge of the fact that one

of the victims was underage, because Dasen did not contest that he was there and took

photos of the girls, and it was undisputed that the girls were, in fact, under eighteen at the

11
time. Additionally, a unanimity instruction as to the victim of the crime was unnecessary

because the two victims, K.E. and V.H., involved “equivalent blameworthiness,” as both

were underage. Cf. Kills on Top v. State, 273 Mont. 32, 56, 901 P.2d 1368, 1383-84

(1995). Consequently, we decline to undertake plain error review concerning the jury

instructions given by the District Court for Count IV, because there is no uncertainty as to

whether the jury reached a unanimous verdict.

¶44 III. Were the second or subsequent prostitution counts (Counts VI, XII, XIV)

properly charged as felonies?

¶45 A. Applicable Facts

¶46 In the third and final amended information, the State alleged ten counts of

prostitution (Counts V through XIV), each with a different person. Count V was charged

as a misdemeanor. The subsequent counts were labeled as second or subsequent offenses

pursuant to § 45-5-601(2)(b), MCA, and thus charged as felonies. The felony prostitution

charges (Counts VI-XIV) did not reference the misdemeanor charge (Count V).

¶47 The State, in its motion for leave to file the third amended information, relied upon

State v. Tichenor, 2002 MT 311, 313 Mont. 95, 60 P.3d 454, as authority to charge

Counts VI through XIV as felonies. Dasen subsequently filed a motion to dismiss the

third amended information, arguing, among other things, that the State incorrectly relied

upon Tichenor because Tichenor “does not contemplate nor propose that a person could

be charged with a misdemeanor against one person and a felony against a completely

different person.” The court denied the motion to dismiss and Dasen appeals from that

denial.

12
¶48 B. Standard of Review

¶49 We review the denial of a motion to dismiss in a criminal case to determine

whether the conclusions of the district court are correct. Tichenor, ¶ 18 (citations

omitted).

¶50 C. Discussion

¶51 Dasen first argues, as he did below, that Tichenor is inapposite. In Tichenor,

where we held that the first stalking count properly operated to transform the second

stalking count into a felony, the two counts alleged conduct against the same victim, the

defendant’s girlfriend. Tichenor, ¶¶ 31-35. In the case at bar, however, there is a

different alleged victim in each prostitution count. According to Dasen, a misdemeanor

offense against one person cannot transform a second offense against a different person

into a felony.

¶52 The State counters, and we agree, that the fact that Dasen’s crimes involved

separate victims is actually a factor supporting the imposition of a felony sentence. In

Tichenor, the victim’s identity was relevant because the defendant argued that the two

counts of stalking were actually one count, precisely because they occurred against the

same person within a short period of time. Tichenor, ¶¶ 25-28. We concluded that

because there was “a break in [the defendant’s] course of conduct” and because a second

individual, the victim’s daughter, was harassed by the defendant, that the prosecutor

acted within her discretion in charging two offenses. Tichenor, ¶ 28. In Tichenor,

therefore, the uniformity of the victim was a hurdle to proving that there were two

distinct crimes. In the case sub judice, the multiplicity of victims bolsters the State’s

13
argument that the subsequent prostitution counts were distinct crimes, to be treated as

felonies under § 45-5-601(2)(b), MCA.

¶53 Dasen, relying on United States v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir.

2004), also argues that when a prior conviction is used to transform a misdemeanor into a

felony, the prior conviction is more than a sentencing factor and “must be charged

explicitly.” Rodriguez-Gonzales, 358 F.3d at 1161. Thus, according to Dasen, the

subsequent prostitution counts, standing by themselves without reference to a first

conviction, must be treated as misdemeanors. Dasen, in his reply brief, further contends

that a subsequent “felony” charge must be based on a prior “conviction” as opposed to

prior charges in the same information.

¶54 Dasen, however, failed to raise this theory below. In his motion to dismiss, Dasen

only argued that “a ‘second or subsequent offense’ when multiple persons/victims are

involved is misplaced and faulty.” The motion to dismiss did not claim, as Dasen now

argues on appeal, that the subsequent felony prostitution counts needed to reference the

misdemeanor prostitution count, that a subsequent felony prostitution count must be

based on a prior “conviction,” or that the Ninth Circuit’s reasoning in Rodriguez-

Gonzales is applicable.

¶55 We have made it clear that a party’s theory may not change on appeal, because it

is fundamentally unfair to fault a district court for failing to rule correctly on an issue it

did not have the opportunity to consider. State v. Johnson, 2005 MT 318, ¶ 13, 329

Mont. 497, ¶ 13, 125 P.3d 1096, ¶ 13 (citations omitted). Dasen contends that by filing

his motion to dismiss the third amended information and supporting brief, he properly

14
preserved the issues he now argues on appeal. However, Dasen did not argue that a

misdemeanor prostitution charge may not be used to transform subsequent charges in the

same information into felonies, and we decline to address that issue for the first time on

appeal.

¶56 Consequently, we affirm the District Court’s denial of Dasen’s motion to dismiss

Counts VI through XIV.

¶57 IV. Did the District Court prevent Dasen from presenting a “mistake of age”

defense to the jury concerning Count IV?

¶58 A. Applicable Facts

¶59 In Count IV, Dasen was charged with sexual abuse of children. At the time of the

offense, the terms “child” and “children” were not defined.1 The District Court,

therefore, in an instruction describing when a person commits the offense of sexual abuse

of children, added the following definition: “[f]or purposes of the offense of sexual abuse

of children, a child is anyone less than eighteen years of age.” Dasen objected to the

court’s definition of “child,” noting that it is “an incorrect statement of the definition of a

child.”

¶60 The court did not instruct the jury, specifically, that Dasen’s reasonable belief that

the girls he photographed were over eighteen years old would constitute a defense to the

charge of sexual abuse of children. However, Dasen did not submit a “mistake of age”

instruction concerning the sexual abuse of children charge, though Dasen did submit such

1
In 2005, after Dasen was charged, § 45-2-101, MCA, was amended to include a
definition of “child” or “children” as “any individual or individuals under 18 years of
age, unless a different age is specified.” Section 45-2-101(6), MCA.
15
an instruction concerning the sexual intercourse without consent charge (Count I). 2 In

fact, it was the State, not Dasen, that argued for an instruction that stated “a person acts

knowingly with respect to a specific fact [referring to the girl’s age] when the person is

aware of a high probability of that fact’s existence.” The State explained that the

instruction was important to give because Dasen was going to argue that he “thought [the

girls] were over 18.” The court refused to give the instruction, and commented “I don’t

think that [Dasen’s] idea of what age they were has anything to do with that offense.”

¶61 Dasen appeals, claiming the court’s jury instruction and “ruling” prevented him

from presenting the defense of mistake of age to Count IV.

¶62 B. Standard of Review

¶63 As discussed in Issue II, we review jury instructions to determine whether the

instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case.

Weaver, ¶ 28 (citations omitted). Further, since a trial court has broad discretion when

instructing a jury, an error in instructing will be reversible only if the jury instructions

prejudicially affect the defendant’s substantial rights. State v. Maloney, 2003 MT 288,

¶ 14, 318 Mont. 66, ¶ 14, 78 P.3d 1214, ¶ 14.

¶64 A district court’s statutory interpretation is a question of law, which we review to

determine whether it is correct. State v. Heath, 2004 MT 58, ¶ 8, 320 Mont. 211, ¶ 8, 89

P.3d 947, ¶ 8 (citations omitted).

2
Dasen withdrew the Count I “mistake of age” instruction during jury instruction
deliberation.
16
¶65 C. Discussion

¶66 Dasen argues that the court erred by defining “child” in the context of the sexual

abuse of children charge because the term was not defined in the code at the time.

Whether or not V.H. and K.E. were children under the statute was, according to Dasen, a

question for the jury.

¶67 The State responds that the 2005 amendment, which defined “child” as a person

less than eighteen years of age, was a clarification rather than a substantive change in the

law. The State notes that both the 2003 and 2005 versions of § 45-5-625(2)(b), MCA,

provide a mandatory minimum prison sentence of four years for sexual abuse of children

under sixteen years of age, which would be superfluous if the more general provisions of

the statute were not construed to protect children between the ages of sixteen and

eighteen years of age.

¶68 The interpretation of a statute is a question of law. Heath, ¶ 8. Questions of law

are properly decided by the court, not the jury. Section 26-1-201, MCA. It was thus the

District Court’s role, not the jury’s, to determine what “child” meant under the 2003

version of § 45-5-625, MCA. We agree with the court’s interpretation that “child,” taken

in context with the rest of the statute, meant a person less than eighteen years old.

¶69 Dasen also argues that the court’s comment, to the State, that the court did not

“think that [Dasen’s] idea of what age they were has anything to do with that offense,”

was a ruling that prevented Dasen from presenting his mistake of age defense. As the

State points out, however, the court may have been confused about which count the State

was referring to, because, as the court instructed the jury, Dasen was prohibited by law

17
from arguing mistake of age concerning Count II (aggravated promotion of prostitution).3

Further, the court’s comment was not an explicit prohibition. As Dasen did not ask the

court to clarify its comment, and as Dasen had not even submitted a proposed jury

instruction concerning the mistake of age defense for Count IV, Dasen is in no position to

now argue that the court “ruled” against him with this remark.

¶70 Moreover, Dasen did in fact argue that he believed the girls were over eighteen.

In his opening statement, Dasen contended that the underage victims had “devised

schemes” to create the impression in Dasen’s mind that “they were older than 18.”

During trial, Dasen elicited an admission from V.H. that she heard K.E. tell Dasen that

K.E. was eighteen and that she heard L.M. tell Dasen that V.H. was eighteen or older.

Dasen himself testified that all of the girls involved told him they were over eighteen and

that he had “no clue” that K.E. or V.H. were underage. Then, in closing, Dasen argued

that he did not “have the mental state to sexually abuse a child” and that he believed K.E.

was “over eighteen.” Assuming that Dasen felt unsure as to the extent he could argue

mistake of age, his uncertainty can be attributed to his failure to seek clarification of the

court’s comment and his failure to submit a proposed jury instruction on that theory.

Having done neither, he cannot now contend that the court precluded him from arguing

mistake of age.

3
Instruction 16 read: “[a] person commits the offense of Aggravated Promotion of
Prostitution if the person purposely or knowingly promotes prostitution of a child under
the age of 18 years, whether or not the person is aware of the child’s age” (emphasis
added).
18
¶71 The State rebutted Dasen’s mistake of age claim, in closing, by arguing that K.E.’s

youth was apparent based on the pictures in evidence as well K.E.’s testimony that she

“had braces on her teeth” with “bright pink rubber bands on them.” The State again

referenced how obvious it was that K.E., especially, was underage, by asking the jury, in

rebuttal closing, to “look at the age of” K.E. who looked as young as “14 or 13.”

¶72 We conclude that the District Court did not prevent Dasen from presenting a

mistake of age defense to Count IV.

CONCLUSION

¶73 As to all four issues, we affirm the judgment of the District Court.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JIM RICE

19