No. DA 06-0105
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 10
STATE OF MONTANA,
Plaintiff and Respondent,
v.
THOMAS DUANE RENNAKER,
Defendant and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-04-19,
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lisa B. Kauffman, Attorney at Law, Missoula, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Micheal S.
Wellenstein, Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, County Attorney, Missoula, Montana
Submitted on Briefs: November 14, 2006
Decided: January 23, 2007
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Thomas Duane Rennaker appeals from the Fourth Judicial District Court’s
judgment convicting Rennaker of two counts of incest and sentencing him to prison, and
the order denying Rennaker’s motion for a new trial. We affirm in part, reverse in part,
and remand for re-sentencing.
¶2 We address the following issues on appeal:
¶3 1. Was the evidence sufficient to support the conviction of two counts of incest?
¶4 2. Did the District Court abuse its discretion in denying Rennaker’s motion for a
new trial alleging jury misconduct?
¶5 3. Did the District Court impose a legal sentence when it based Rennaker’s
punishment, in part, on his lack of remorse and failure to acknowledge he was wrong?
BACKGROUND
¶6 On January 7, 2004, the State of Montana charged Thomas Duane Rennaker with
two counts of incest. The first count alleged Rennaker had sexual contact and/or
intercourse with his seventeen-year-old stepdaughter in 1998. The second count alleged
Rennaker had sexual intercourse with his stepdaughter without her consent when she was
age eighteen through twenty-two.
¶7 Sherry Munnerlyn had three children before she met Thomas Rennaker—a
daughter, S.R. (the oldest, born April 19, 1981), and two sons. Sherry met Rennaker in
1987. In 1989, Sherry and Rennaker married, and Rennaker became the stepfather to her
children.
2
¶8 In 1991, Sherry and Rennaker moved into a log cabin a few miles outside of
Florence, Montana. Over the next several years, Sherry worked at various jobs in
Missoula, and would often be gone until eight or nine o’clock in the evening. Rennaker
worked seasonal jobs. He put in irrigation systems in the summer and did odd jobs in the
winter. At times, he did not work and was often at home alone with the children. They
lived an isolated life with only one neighbor nearby.
¶9 Sherry and Rennaker had a physically and verbally abusive relationship, often
displayed in front of the children. Rennaker also verbally abused the children, yelling at
them and calling them names. He did not allow the children to have friends. He once
threatened to burn the house down if they did not listen to him. S.R. was responsible for
cooking, and Rennaker would throw his dinner on the floor for the dogs if he did not like
it. Many times throughout the years, Rennaker would kick Sherry and the children out of
the house, and Sherry would take them to her parents’ house. When things cooled off
between Sherry and Rennaker, they would move back to the cabin.
¶10 After being kicked out once again around Thanksgiving time in 2003, Sherry
decided to divorce Rennaker. Unbeknownst to Sherry, S.R. and Rennaker had repeatedly
had sexual intercourse. Rennaker told S.R. that he was going to tell Sherry that they had
been having sex. Because she was afraid that Rennaker would tell Sherry first and twist
things around, making it seem like her fault, S.R. immediately told her mom that
Rennaker had been having sex with her.
¶11 Sherry called 911, asking for an officer to arrest her husband because he had sex
with her daughter. In a statement to police, S.R. described the first time Rennaker had
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nonconsensual sexual contact with her, stating it started when she was seventeen years
old and had continued since then. Based on S.R.’s statement, Rennaker was charged with
incest.
¶12 Rennaker was tried by a jury in April of 2005 and convicted of both counts of
incest. Rennaker then filed a motion for a new trial based on juror misconduct. He
alleged that he did not have a fair and impartial trial because two female jurors failed to
disclose in voir dire that they had either been a victim of a sexual crime or knew someone
who was a victim of a sexual crime. The District Court denied the motion.
¶13 The court sentenced Rennaker to twenty years on each count, with the last fifteen
years suspended, to run concurrently. The court stated at the sentencing hearing that the
prison time was given, in part, due to Rennaker’s lack of remorse and failure to
acknowledge his conduct was wrong.
¶14 Rennaker appeals from the judgment and from the court’s order denying his
motion for a new trial.
DISCUSSION
¶15 ISSUE 1: Was the evidence sufficient to support the conviction of two counts
of incest?
¶16 The standard of review of sufficiency of the evidence on appeal is whether, upon
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Bailey, 2003 MT 150, ¶ 7, 316 Mont. 211, ¶ 7, 70 P.3d 1231, ¶ 7 (2003). The
trier of fact, a jury in this case, determines the credibility of witnesses and the weight to
4
be given to their testimony because it is in the best position to do so. State v. Bauer, 2002
MT 7, ¶ 15, 308 Mont. 99, ¶ 15, 39 P.3d 689, ¶ 15; State v. Booke, 178 Mont. 225, 234,
583 P.2d 405, 410 (1978). The jury’s determination with regard to disputed questions of
fact and credibility will not be disturbed on appeal. Bauer, ¶ 15. If evidence conflicts, it
is within the province of the jury to determine which evidence will prevail. Bauer, ¶ 15.
A conviction for a sex offense may be based entirely on the uncorroborated testimony of
the victim. Bauer, ¶ 15.
¶17 Rennaker argues that the State failed to provide sufficient evidence that proved
beyond a reasonable doubt that he was guilty of incest. The offense of incest is defined
in § 45-5-507(1), MCA, as follows:
A person commits the offense of incest if the person knowingly marries,
cohabits with, has sexual intercourse with, or has sexual contact, as defined
in 45-2-101, with an ancestor, a descendant, a brother or sister of the whole
or half blood, or any stepson or stepdaughter. The relationships referred to
in this subsection include blood relationships without regard to legitimacy,
relationships of parent and child by adoption, and relationships involving a
stepson or stepdaughter.
Consent is a defense to incest with a stepson or stepdaughter, but consent is ineffective if
the victim is less than eighteen years old. Section 45-5-507(2), MCA.
¶18 In the first count of incest, the State charged Rennaker with having sexual contact
and/or sexual intercourse with S.R. in 1998 when she was seventeen years old. S.R., the
victim, testified that she was seventeen years old when Rennaker first had sexual contact
with her and began to have sexual intercourse with her. She told the jury of the first
sexual incident with Rennaker when she was seventeen. It was a warm summer night and
she was sleeping outside. Rennaker came outside after it got dark and sat down beside
5
her. He rubbed her legs and breasts, then put his hand under her shorts and put his
fingers inside her. After about five minutes, he got up and left. She stated that she was in
shock when it happened because it was so unexpected; she did not say anything to him
because it happened so fast. She was scared and confused. She said the next day he gave
her five dollars, which she figured meant she needed to be quiet. She did not tell anyone,
and she felt like she did not have anyone she could tell. She testified that her mother was
working as a salesperson at a car lot in Missoula at the time of this incident. Sherry’s job
at the car lot was one of a series of three jobs that she held outside the home after the
family moved to the cabin.
¶19 S.R. told the jury that the next incident happened about a month later. She had
been sick and was lying on Sherry and Rennaker’s bed. Rennaker came upstairs to the
bed, took off S.R.’s pants and his pants, laid on top of her, put his penis inside her, then
stopped before he ejaculated. She told the sheriff’s deputy this occurred approximately
twice every three or four weeks and that Rennaker had sex with her several more times
before she turned eighteen.
¶20 At one point when S.R. was seventeen, she left home and went to her
grandparents’ house. Sherry and Rennaker found her there, but she refused to go home.
When a sheriff’s deputy responded, S.R. did not tell the deputy why she refused to go
home. Because she was only seventeen, the deputy told her she had to go home with her
parents. S.R. testified that Rennaker had sexual intercourse with her prior to this
incident.
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¶21 Rennaker challenges the sufficiency of the evidence of this count of incest, stating
that S.R. was over the age of eighteen when their sexual relationship began. Rennaker
points to the fact that S.R. said she was “around five years old . . . quite young,” when
Rennaker became her stepfather, when in fact, Sherry and Rennaker married when S.R.
was eight years old. From this, Rennaker concludes that S.R.’s testimony as to her age at
the time of the first sexual contact was not credible. Secondly, S.R. testified that her
mom was working at the car lot at the time of the first sexual contact. Sherry started
working at the car lot in 2001 when S.R. was twenty years old. Thus, Rennaker
concludes that S.R. must have been twenty years old at the time of the first contact.
¶22 The jury weighed this testimony and the credibility of the witnesses and
determined that S.R. was seventeen at the time of the first sexual encounter with her
stepfather. Viewing the evidence in the light most favorable to the prosecution, we
conclude that S.R.’s testimony provided sufficient evidence from which the jury could
conclude S.R. was seventeen years old at the time Rennaker had his first sexual contact
with her. Based on her testimony, the jury could have found him guilty of incest beyond
a reasonable doubt.
¶23 In the second count of incest, the State charged Rennaker with having sexual
intercourse with S.R. without her consent from when S.R. was age eighteen through
twenty-two. Rennaker asserts that S.R. consented to the sexual encounters. S.R. testified
that when she turned eighteen, Rennaker had sexual intercourse with her about every
couple weeks. She testified that after sex, she would lay there and cry, and that she did
not think she had a choice in the matter; Rennaker was in charge. She testified that
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sometimes she told Rennaker no, she did not want to have sex, and sometimes he would
leave her alone, but other times, he would have sex with her anyway. Sometimes she
would not say anything to him, and sometimes she told him it was okay even though she
did not want it. She said she never told anyone what was happening. She said he never
threatened her or beat her, but she was afraid if she told anyone, Rennaker would hit her
mother or throw her mother out of the house.
¶24 Rennaker testified at trial that S.R. initiated the sexual contacts. He stated the
first time they had sex was when he was lying in his bed and S.R. came upstairs and got
into bed with him. He stated they would most often have sex when no one was around.
Sherry was at work at the car lot, the boys were at school, and since S.R. had already
graduated, they were alone. Rennaker stated that he never threatened S.R., never told her
not to tell anyone, and that she never told him she did not want to have sex. He testified
that he had a good relationship with S.R. and that he even got her a job at the irrigation
company where he worked.
¶25 Rennaker had his employer, the neighbor, and his sister’s friend testify on his
behalf. His employer testified that in the instances he saw Rennaker and S.R. working
together, they seemed to have more of a “boyfriend-girlfriend” relationship. Rennaker’s
neighbor testified that he saw Rennaker and S.R. together about once a week, and they
seemed to have a friendly happy relationship. Rennaker’s sister’s friend testified that she
was at their cabin once, and she heard S.R. say “I wish the bitch would get off the
mountain, and leave us alone.” From this statement, she assumed that S.R. wished
Sherry would leave S.R. and Rennaker alone.
8
¶26 Again, the jury weighed this testimony and the credibility of the witnesses and
determined that S.R. did not consent to sexual intercourse with her stepfather. Viewing
the evidence in the light most favorable to the prosecution, we determine there was
sufficient evidence from which the jury could conclude that S.R. did not consent to
sexual intercourse with Rennaker, and thus he was guilty of incest.
¶27 We affirm the District Court’s judgment finding Rennaker guilty of two counts of
incest.
¶28 ISSUE 2: Did the District Court abuse its discretion in denying Rennaker’s
motion for a new trial alleging jury misconduct?
¶29 It is within the discretion of the district court to grant or deny a motion for a new
trial, and the district court’s determination will not be overturned unless the defendant
demonstrates he was deprived of a fair and impartial trial. State v. McNatt, 257 Mont.
468, 471, 849 P.2d 1050, 1052 (1993). This Court will reverse a district court’s decision
regarding a juror’s fitness to serve only when the district court abused its discretion.
State v. Hatten, 1999 MT 298, ¶ 28, 297 Mont. 127, ¶ 28, 991 P.2d 939, ¶ 28 (citations
omitted). The trial court is in the best position to observe the jurors and to decide the
potential for prejudice when allegations of juror misconduct are raised; therefore, the trial
court has significant latitude when ruling on these matters, and its determination is given
considerable weight by this Court. Hatten, ¶ 28 (citation omitted). This Court will defer
to that determination absent a showing of prejudice. Hatten, ¶ 28 (citation omitted).
¶30 The state and federal constitutions guarantee a defendant’s rights to a fair and
impartial jury. Mont. Const. art. II, § 24; U.S. Const. Amend. VI. Rennaker asserts that
9
he was deprived of this right when, during voir dire, two jurors failed to disclose their
experience with sexual crimes, but then disclosed this information during deliberations.
¶31 At the start of jury selection, the court informed the jury pool that the case
involved an allegation of incest, and asked if that fact alone would make anyone unfit to
be a juror. There was no response. The court then inquired: “Has anybody had a family
member, or themselves, or a close friend, suffer from a sexual crime?” When some of
the jurors answered affirmatively, the court then asked: “Okay, now, rather than call on
each of you, as individuals, I would ask you: Does anyone think that that experience
would interfere with your ability to sit as a juror?” Five jurors answered affirmatively to
this question. When questioned further, all five of these jurors were excused. Since
jurors Mary Diane Schmautz and Schery Hamilton did not respond affirmatively to the
court’s follow-up question, they were not excused.
¶32 Juror Hamilton was not initially seated in the jury box. When a number of jurors
were excused, she took a seat in the jury box. The State then asked Hamilton if there was
anything that she heard during voir dire that she would have responded to and was there
anything about her state of mind that would be important for the attorneys to know about.
Her response was: “You have to know the facts, and you have to judge it appropriately,
as far as the law.” Later, defense counsel directly posed a question to Schmautz, asking
her if she could put aside any natural inclination she may have to believe Rennaker did
something, and presume Rennaker was innocent. Schmautz’s response was: “Well, the
way I look at it, to be a juror, you have to put aside your own basic prejudices, and look
10
at only the facts and the instructions from the Judge.” Schmautz and Hamilton both
served as jurors.
¶33 After the trial, two jurors came forward with affidavits stating that shortly after
deliberations began, two female jurors, identified as Schmautz and Hamilton, disclosed
that they had been sexually abused or knew someone that had been sexually abused. One
affiant stated: “It was very apparent that these two jurors were not impartial and that prior
to even reviewing the evidence, they both made it clear that they would not vote for a not
guilty verdict.” Another affiant stated of one of the women: “It was quite apparent
through deliberations that she viewed the evidence through the perceptions of her own
experience.” Rennaker filed a motion for a new trial based on these affidavits.
¶34 Schmautz and Hamilton provided their own affidavits in support of the State’s
opposition to the motion. They stated that they did not conceal information during voir
dire, they appropriately answered questions asked of them, and they decided the case
impartially based on the evidence and jury instructions given them. The District Court
denied the motion for a new trial because there was no evidence that one or more jurors
on the panel would have found the defendant not guilty but for the presence or undue
pressure from jurors Schmautz and Hamilton.
¶35 In his original motion for a new trial, Rennaker did not challenge the validity of
the verdict, but rather, asserted that Hamilton and Schmautz were not competent to sit on
the jury because of their failure to disclose past experience with sexual abuse. Thus, he
concluded he was denied his constitutional right to twelve impartial jurors. A juror’s
nondisclosure of information may constitute misconduct resulting in a denial of the
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defendant’s right to a fair and impartial jury if the juror’s nondisclosure amounts to
intentional concealment. Hatten, ¶ 29 (citation omitted). Where a juror’s nondisclosure
does not amount to intentional concealment and no further evidence of bias is proven,
there is no error. Hatten, ¶ 29 (citation omitted).
¶36 Rennaker asserted that Schmautz and Hamilton intentionally concealed
information during voir dire. He stated that Schmautz and Hamilton did not respond
when the court asked whether any potential juror or anyone they knew had been victims
of a sexual crime. The trial transcript does not contain any record of who did or did not
respond. The record is clear that Schmautz and Hamilton did not respond affirmatively
to the court’s follow-up question regarding whether such an experience would hinder
their ability to serve as a juror. Further, both jurors made statements during voir dire that
demonstrated their understanding of the need to remain impartial, follow the law given to
them, and decide the case based on the evidence. Both jurors took an oath to well and
truly try the matter in issue and render a true verdict according to the evidence. Section
25-7-207, MCA. Finally, both jurors signed sworn affidavits that they were honest in
their answers to the court and followed the law in deliberations.
¶37 The affidavits of the two other jurors generally state that the two women were not
impartial, viewed the evidence through their own experience, and made it clear they
would not vote for a not guilty verdict. The affidavits, however, do not provide specific
statements demonstrating impartiality, nor do they explain how the statements that the
women would not vote for a not guilty verdict were related to their own experiences with
12
sexual abuse. Further, the affidavits do not assert that the affiants or other jurors were
influenced to vote guilty based on Hamilton’s or Schmautz’s statements.
¶38 There is nothing in the record indicating that Hamilton and Schmautz intentionally
concealed information from the court during voir dire. Where there is no intentional
concealment of information, there must be other evidence of bias in order to show the
court erred in denying Rennaker’s motion for new trial. Finding no other evidence of
bias, we hold the District Court did not abuse its discretion in denying Rennaker’s motion
for a new trial.
¶39 On appeal, Rennaker presents a different legal theory. Rather than framing the
issue as a juror competency question based on nondisclosure, Rennaker now contends
that the question is not whether the jurors’ failure to disclose prior sexual abuse was
inadvertent or unintentional. Instead, Rennaker argues on appeal that the question is
whether the disclosure during deliberations affected the two jurors’ impartiality or
contaminated the jury pool. In his appellate argument, he relies on cases that discuss
external influences on the jury that may have led to unfair convictions. Based on our
longstanding rule that we will not discuss new legal theories on appeal, we will not
consider Rennaker’s new argument. State v. Courville, 2002 MT 330, ¶ 5, 313 Mont.
218, ¶ 5, 61 P.3d 749, ¶ 5.
¶40 ISSUE 3: Did the District Court impose a legal sentence when it based
Rennaker's punishment, in part, on his lack of remorse and failure to acknowledge
he was wrong?
13
¶41 This Court reviews a sentence for legality only. State v. Shreves, 2002 MT 333,
¶ 8, 313 Mont. 252, ¶ 8, 60 P.3d 991, ¶ 8.
¶42 Rennaker argues that the District Court violated his Fifth Amendment right against
self-incrimination when the court based his sentence, in part, on Rennaker’s failure to
show remorse or admit that his conduct was wrong. The pre-sentence investigation
report recommended that Rennaker receive a twenty-year sentence with all time
suspended because he posed a low risk of recidivism. The court sentenced Rennaker to
twenty years in prison on each count, with the last fifteen years suspended, to run
concurrently. At the hearing, the court asked Rennaker if there was anything he would
like to say, to which Rennaker said no. The court then stated: “The Court makes some
specific findings concerning your behavior. First, Mr. Rennaker, not only do you not
have any remorse for what has occurred, you don’t even acknowledge that it’s wrong.
For that reason, and that reason, in and of itself, you should be subjected to prison.” The
court further stated: “And finally, as the Court stated earlier, what bothers the Court more
than anything is Mr. Rennaker does not even possess the judgment at the present time to
feel what he has done is wrong.”
¶43 In the written judgment, the court gave the following reasons for ruling as it did:
1. It conforms to the Plea Agreement and Pre-sentence Investigation
Report.
2. The Court considered the Defendant’s lack of remorse.
3. The commitment will not create an undue hardship on the defendant or
his family.
4. This type of conduct demands some punishment.
14
¶44 In State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991), this Court vacated a
sentence because it violated the defendant’s constitutional right to remain silent. In
Imlay, the defendant was convicted of sexual assault and given a suspended sentence.
Imlay, 249 Mont. at 84, 813 P.2d at 980. One of the conditions of the suspended sentence
was that Imlay had to complete a sexual therapy program. Imlay, 249 Mont. at 84, 813
P.2d at 981. In order to complete the sexual therapy program, Imlay had to admit that he
was guilty of the crime of which he was charged and convicted, which he refused to do.
Imlay, 249 Mont. at 85-86, 813 P.2d at 982. Imlay’s suspended sentence was revoked
and he was ordered to serve five years in prison. Imlay, 249 Mont. at 86, 813 P.2d at
982. Thus, Imlay was being subjected to punishment that he would not be subjected to if
he were to admit his guilt. Imlay, 249 Mont. at 90, 813 P.2d at 985. This Court held that
a district court is prohibited from “augmenting a defendant’s sentence because he refuses
to confess to a crime or invokes his privilege against self-incrimination.” Imlay, 249
Mont. at 91, 813 P.2d at 985.
¶45 This Court then addressed the issue of whether it is a violation of a defendant’s
constitutional right against self-incrimination to base a sentence in part on a defendant’s
failure to show remorse or accept responsibility for the crime. Shreves, ¶ 9. In Shreves,
the defendant testified at trial, but did not speak on his own behalf at his sentencing
hearing. Counsel indicated that Shreves maintained his innocence. Shreves, ¶ 4. When
the court sentenced Shreves, it stated that it did so, in part, because of the defendant’s
failure to show remorse or responsibility. Shreves, ¶ 7. The court asked Shreves if he
wanted to say anything, and Shreves declined. Shreves, ¶ 7. The court stated: “as we sit
15
here, you’ve given us nothing as to why this happened. So what we’ve got is what
appears to be the premeditated killing of an individual with no remorse or responsibility
shown on your part.” Shreves, ¶ 7. We noted that a district court can consider lack of
remorse as a basis for a sentence, but cannot punish a defendant for refusal to admit guilt.
Shreves, ¶ 19. The district court interpreted Shreves’ silence at sentencing as lack of
remorse, and sentenced him based on his refusal to admit guilt. Shreves, ¶ 20. The rule
we pronounced in Shreves was: “a sentencing court may not draw a negative inference of
lack of remorse from the defendant’s silence at sentencing where he has maintained,
throughout the proceedings, that he did not commit the offense of which he stands
convicted—i.e. that he is actually innocent.” Shreves, ¶ 22. We concluded Shreves’ right
against self-incrimination was violated when the court sentenced him based in part on
Shreves’ refusal to admit his crime and show remorse at sentencing. Shreves, ¶ 24.
¶46 We addressed this issue again in State v. Cesnik, 2005 MT 257, 329 Mont. 63, 122
P.3d 456. In Cesnik, the defendant testified at trial but not at his sentencing hearing.
Cesnik, ¶ 10. He did not expressly invoke his right to remain silent, but he did maintain
that he was innocent. Cesnik, ¶ 21. The District Court based its sentence largely on the
fact that Cesnik maintained his innocence even after being convicted of the crime.
Cesnik, ¶ 24. This Court determined that an admission of guilt by the defendant, when he
still had a right to appeal his conviction, “would have undermined his constitutionally
protected right not to incriminate himself and rendered his appeal meaningless.” Cesnik,
¶ 24. We held that “a sentencing court may not punish a defendant for failing to accept
16
responsibility for the crime when that defendant has expressly maintained his innocence
and has a right to appeal his conviction.” Cesnik, ¶ 25.
¶47 Before we turn to the issue of whether the court in the instant case based its
sentence on Rennaker’s refusal to confess to the crime or admit guilt, we must determine
three preliminary matters important to an appeal of this nature. Shreves, ¶ 11. First, we
must determine whether Rennaker invoked his right to remain silent or maintained his
innocence. Shreves, ¶ 11; Cesnik, ¶ 21. In Cesnik, the defendant did not expressly
invoke his right to remain silent; rather he testified at trial and maintained his innocence.
Cesnik, ¶ 21. Similarly in this case, Rennaker did not expressly invoke his right to
remain silent. He testified at both his trial and the sentencing hearing (his testimony at the
sentencing hearing was for the purpose of identifying a photograph) and maintained his
innocence. He continued to assert after the trial that his sexual contact with S.R. was
consensual and occurred only after she was twenty years old.
¶48 Secondly, if there is a conflict between the oral pronouncement of sentence and
the subsequent written sentence, the oral pronouncement of sentence controls. Shreves,
¶ 12 (citing State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40). The
oral pronouncement of the sentence in this case varies slightly from the later written
judgment, namely that in the oral pronouncement of the sentence, the court made clear
the prison time was based on Rennaker’s lack of remorse and his failure to acknowledge
that his conduct was wrong. The written judgment merely stated the court considered
Rennaker’s lack of remorse. Thus, the oral pronouncement of judgment is controlling to
the extent of this conflict or omission.
17
¶49 Finally, we must look at the evidence the court used to determine the sentence in
this case. Shreves, ¶ 13. “[A] sentencing court can consider any evidence relevant to a
defendant’s sentence, including evidence relating to the crime, the defendant’s character,
background history, mental and physical condition, and any other evidence the court
considers to have probative force.” Shreves, ¶ 13 (citing State v. Collier, 277 Mont. 46,
63, 919 P.2d 376, 387 (1996)). While a court cannot sentence a defendant or augment a
sentence based on a defendant’s refusal to confess to a crime, a court can sentence a
defendant based on lack of remorse. Shreves, ¶ 20. In this case, the court reviewed the
pre-sentence investigation report. The court heard testimony from the victim’s family
that Rennaker continued to try to contact the victim, that the victim feared Rennaker, and
that Rennaker blamed the victim and the victim’s mother for the situation. The court
heard closing arguments at trial that asserted that Rennaker’s actions were not only
legally wrong, but morally wrong based on the fact that S.R. was his stepdaughter. The
court heard Rennaker admit at trial that he had sex with S.R., but maintain he was not
guilty of incest because S.R. was twenty years old when it started and that it was
consensual.
¶50 In this case, the District Court clearly relied on Rennaker’s lack of remorse and
failure to acknowledge his conduct was wrong as a basis for sentencing him to prison. In
fact, the court stated that this was reason enough to send him to prison. The question,
then, is whether the District Court inferred the lack of remorse from Rennaker’s silence at
sentencing when he declined the court’s invitation to offer an explanation. The court was
looking for an acknowledgment of guilt or remorse, and in response to Rennaker’s
18
silence, commented that “Rennaker does not even possess the judgment at the present
time to feel what he has done is wrong.” In order to express remorse or acknowledge that
his conduct was wrong, Rennaker would have had to break his silence and admit guilt—
contrary to his assertion of innocence and right to appeal.
¶51 If a court chooses to sentence a defendant based upon lack of remorse, it cannot
infer lack of remorse from a defendant’s silence. Rather, it must point to affirmative
evidence in the record demonstrating lack of remorse. For example, the court can
consider evidence as to the manner of the commission of the offense or admissible
statements made by a defendant pre-trial, at trial, or post-trial. Shreves, ¶ 21.
¶52 Here, the District Court did not tie its finding of lack of remorse to any specific
evidence or statements made by Rennaker. Rather, it violated Rennaker’s right against
self-incrimination when, based on Rennaker’s silence, it drew a negative inference of
lack of remorse. We held in Cesnik that “a sentencing court may not punish a defendant
for failing to accept responsibility for the crime when that defendant has expressly
maintained his innocence and has a right to appeal his conviction.” Cesnik, ¶ 25. The
District Court did just that when it imposed a sentence based, in large part, on Rennaker’s
silence and failure to express remorse or acknowledge that his conduct was wrong.
¶53 Rennaker also argues in his appeal that the other findings in the District Court’s
judgment were inappropriate bases for the sentence. However, Rennaker provides no
legal authority to support this argument, and thus we need not consider it. Mont. R. App.
P. 23(a)(4); State v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, ¶ 22, 133 P.3d 206, ¶ 22.
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¶54 The judgment of the District Court is affirmed on Issues 1 and 2. We reverse the
imposition of sentence and remand for re-sentencing on Issue 3 consistent with this
Opinion.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
Justice Jim Rice concurring.
¶55 I concur with the Court’s resolution of all issues, but write separately on Issue 3.
¶56 A defendant’s attitude, personality, demeanor and the respect which he appears to
hold for society in general and individuals in particular are factors which sentencing
judges consider, and should consider, in crafting the appropriate sentence. During
sentencing, a courtroom may be filled with the sights and sounds of human pain and
suffering, offered by those who knew or lived with and around a defendant. What is the
defendant’s reaction to this pain and suffering? I submit that a sentencing judge can and
should gain insight into a defendant’s character and potential for future rehabilitation by
observing the defendant’s reaction to the human suffering going on around him.
Volumes are spoken about the person’s character who cannot be “remorseful” about
human suffering, whatever its cause. A person who cares nothing about those around
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him lacks a moral compass and is a dangerous person indeed and who, for the protection
of society, should be supervised or imprisoned. Such an observation—that is, whether a
defendant sees and understands the devastation experienced by those around him—is an
issue separate and apart from guilt or innocence.
¶57 I believe that this assessment of character necessarily includes a sentencing
court’s observation of the defendant’s nonverbal reactions and behavior. What a
defendant fails to do often speaks as loudly as his or her affirmative actions. A
defendant’s failure to “break his silence” about the pain or devastation around him is, in
my view, an appropriate factor for the sentencing court to consider and from which to
draw a conclusion that the defendant has or feels no remorse for those around him. If the
defendant’s conviction is upheld on appeal, then the sentence will be implemented, and
thus, these factors must be considered at the moment of sentencing. There is plenty of
room in the law for the judge to do this while at the same time preserving the defendant’s
right against self-incrimination, to maintain his innocence and to challenge the guilty
verdict on appeal. Likewise, there is room for a defendant to acknowledge the pain in
those around him—if he sees it—and still maintain that he did not commit the crime.
Consideration of these nonverbal factors should be added to the list of permissible
sentencing considerations set forth in ¶ 49 of the Court’s opinion and, to this degree, our
statement in Shreves that “a sentencing court may not draw a negative inference of lack
of remorse from the defendant’s silence at sentencing” when he has maintained his
innocence should be clarified. Shreves, ¶ 22.
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¶58 The sentencing court properly considered some of these factors, but I must
concede that the court then went beyond that by stating “not only do you not have any
remorse for what occurred, you don’t even acknowledge that it is wrong. For that reason,
and that reason, in and of itself, you should be subjected to prison.” While it was
appropriate, for the reasons discussed herein, for the sentencing court to infer lack of
remorse from Rennaker’s silence, sentencing him for failure to acknowledge that his
conduct was wrong necessarily sentences him for failing to admit to the charge. 1 Thus,
the sentencing court crossed a line into the impermissible, running afoul of Cesnik’s
instruction that “a sentencing court may not punish a defendant for failing to accept
responsibility for the crime.” Cesnik, ¶ 25 (emphasis added). For that reason, Rennaker
must be resentenced.
/S/ JIM RICE
Justice John Warner concurring.
I join in the concurrence of Justice Rice. It is incumbent upon a sentencing judge
to choose his or her words carefully.
/S/ JOHN WARNER
1
Although having sex with a stepdaughter may be morally reprehensible, Rennaker
claimed that the relationship had not started until his stepdaughter had reached the age of
eighteen, at which point the conduct would not have been forbidden under the law.
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