State v. Rosling

February 26 2008

05-222

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 62

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JARED LEE ROSLING,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC-2004-032
Honorable Jeffrey Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Attorney at Law, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell,
Assistant Attorney General, Helena, Montana

Leo Gallagher, Lewis & Clark County Attorney, Helena, Montana

Submitted on Briefs: January 16, 2008

Decided: February 26, 2008

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Jared Lee Rosling appeals from his conviction and sentence in the District Court

for the First Judicial District, Lewis and Clark County, on charges of deliberate homicide,

aggravated kidnapping, aggravated burglary, tampering with or fabricating physical

evidence, and criminal possession of dangerous drugs (methamphetamine). We affirm.

¶2 We restate the issues on appeal as follows:

1. Did the District Court err in denying Rosling’s motion to dismiss all of the

charges for insufficient evidence?

2. Is the parole-eligibility restriction on Rosling’s sentence illegal?

3. Is Rosling’s sentence illegal because the prosecutor referred to a swastika tattoo

on Rosling’s back during the sentencing hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On the morning of Sunday, February 1, 2004, at approximately 8:00 a.m., Richard

Dooley arrived at the home of his 21-year-old daughter, Jessica Dooley, in Helena,

Montana. He had plans to go snowmobiling with a friend that morning, and he went to

Jessica’s house to pick up his snowmobiles, which were kept on a trailer in the driveway.

After securing the trailer to the back of his pickup, Richard went inside the house. Upon

entering, he smelled smoke and immediately began searching for its source. He

eventually found Jessica’s naked body lying dead on the bathroom floor with her feet

toward the door. A plastic bag had been wrapped around her head and fastened with a

ligature. Magazines had been placed under her legs and set on fire. Richard used a fire

2
extinguisher to put out the fire and then went outside the house and called 911. The time

at this point was approximately 8:20 a.m.

¶4 An examination of the crime scene suggested that Jessica had been attacked in her

bedroom, where she defecated, and then ended up in the bathroom, where she was

stabbed numerous times. Investigators found very little blood in the bedroom; however,

they found fecal matter on the bed and on an article of clothing. It appeared that the

clothing may have been used to wipe up some of the fecal matter. There also was fecal

matter on the bedroom floor, which appeared to have “some directionality” to it. In the

bathroom, investigators observed blood on the walls, on the countertop, in the sink, and

in the area surrounding the bathtub. They also found two t-shirts on the countertop and a

pair of blue shorts in the sink. One of the officers noted that fecal matter was “mixed in

with the blood and the shorts” in the bathroom sink. It was later determined that Jessica

typically slept in shorts and a t-shirt.

¶5 An autopsy revealed evidence of neck compression or strangulation, possibly to

the point that Jessica lost consciousness. The medical examiner, Dr. Gary Dale, testified

in this regard that it is “not uncommon” for people to defecate while being choked.

However, Dale concluded that strangulation was not the cause of Jessica’s death. Rather,

the cause of death was multiple cutting and stab wounds. He observed about 67 stab

wounds and 28 cutting or incised wounds on her body. With respect to some of the cuts

on Jessica’s hands, Dale concluded that “she could have been conscious at the time

grabbing at the instrument,” i.e., the cuts “potentially” were defensive wounds. But with

the numerosity of the wounds, he could not rule out that her hands “may have just been in

3
proximity to” the instrument. With respect to the plastic bag placed over Jessica’s head,

he concluded that this was done postmortem.

¶6 The State ultimately charged Rosling with five felony offenses: Count I –

deliberate homicide, in violation of § 45-5-102(1)(a), MCA, or, in the alternative, Count

II – deliberate homicide, in violation of § 45-5-102(1)(b), MCA (commonly known as the

felony-murder rule); Count III – aggravated kidnapping, in violation of § 45-5-303(1)(c),

MCA; Count IV – aggravated burglary, in violation of § 45-6-204(2)(b), MCA; Count

V – tampering with or fabricating physical evidence, in violation of § 45-7-207(1)(a),

MCA; and Count VI – criminal possession of dangerous drugs (methamphetamine), in

violation of § 45-9-102, MCA.1 A jury trial was held October 4 through October 18,

2004, and the State’s evidence revealed the following.

¶7 The evening prior to Jessica’s death (January 31, 2004), Rosling, Jessica, and

several friends were drinking at local bars in Helena and at a party in a private residence

in East Helena. In addition to drinking alcoholic beverages, Rosling also used

methamphetamine that night. Toxicology reports indicated that Jessica was intoxicated at

the time of her death but that she had not ingested any drugs.

¶8 At the party in East Helena, several people, including Rosling and Jessica, played

a game called “quarters,” which involved flicking a quarter at an opposing player’s

knuckles, sometimes resulting in cuts and blood on the player’s hands. Both Rosling and

Jessica received cuts on their hands while playing this game.

1
All statutory references herein are to the 2003 Code, which was in effect at the
time the offenses at issue were committed.

4
¶9 The party broke up at around 4:00 or 5:00 a.m. the following morning (February

1). Some people stayed at the East Helena residence and watched a movie or fell asleep.

Others headed back to Helena. Rosling and a friend, Ryan Hill, discussed going skiing

later in the day. Rosling then drove Jessica and another friend, Mike Taylor, back to their

vehicles at the Valley Hub bar on the north side of Helena. Jessica sat in the front seat;

Taylor sat in the back seat. Rosling dropped Taylor off first, but Taylor did not observe

where Rosling and Jessica went after that. Taylor arrived home between 5:30 and 6:00

a.m. and played a game of cribbage with his landlord before going to bed.

¶10 The State called one of Jessica’s neighbors, who testified that at approximately

6:00 a.m. on February 1, she got up to let her dog out and happened to see a car being

parked across the street from her house. The neighbor saw someone get out of the

driver’s side of the car, but since it was still dark at that hour, she could not make out

whether it was a man or a woman and she could not see where the person went. In

addition, she testified that while she could not make out any details of the car at that hour,

she was able to do so by about 7:00. The neighbor later identified Rosling’s car as the

car she had seen parked across the street. The neighbor further testified that at

approximately 8:00, she saw a man matching Rosling’s general description returning

“very quickly” to the car from the direction of Jessica’s house and driving away. The

neighbor observed that the man was carrying a paper sack in one hand.

¶11 One of the investigating officers testified that there were fresh shoeprints in the

snow along the garage and in the back yard of Jessica’s house. The direction of the

shoeprints indicated that someone had walked behind the garage, climbed over a chain

5
link fence into the back yard, and proceeded to a back patio area. The officer did not find

any return path, i.e., fresh tracks leading from the back to the front of the house.

However, the officer found fresh shoeprints in the driveway area leading away from

Jessica’s house in the direction of where Rosling’s car had been parked. Whereas the

spacing of the shoeprints along the garage and in the back yard indicated that the person

had “a normal walk” or “maybe a little shorter than a walk,” the spacing of the shoeprints

across the driveway indicated that the person was “in a hurry or running.”

¶12 The State’s evidence indicated that Rosling then went to Wal-Mart, arriving at

about 8:20 a.m. Although he had been wearing jeans earlier that night (a security

videotape obtained from Lucky Lil’s showed him wearing jeans at about 1:30 a.m.), he

entered Wal-Mart wearing long underwear. According to a computer-generated receipt

the police obtained from Wal-Mart, Rosling purchased thermal socks, boxer shorts, and

sweatpants at 8:35 a.m. Rosling then went to Target, where he purchased two compact

discs. Rosling returned to Wal-Mart and purchased a birthday card at 10:27 a.m. He

then went to Shopko and, at 11:15 a.m., purchased gloves, deodorant, and a soft drink.

¶13 Rosling eventually left Helena and went to Great Divide Ski Area, arriving at

approximately noon. Hill and Taylor arrived about an hour later, and Hill skied several

runs with Rosling. Hill testified that he brought up Jessica’s murder several times, but

Rosling did not have anything to say about it. Instead, Rosling talked about the new ski

gear he had just purchased. Rosling did tell Hill that he had left Jessica at the Valley Hub

bar along with Taylor and then slept in his car for a couple of hours. Rosling also said

that his girlfriend, Janis Hazlitt, would not let him in her house that morning.

6
¶14 Hazlitt testified that Rosling left her house at 8:00 or 9:00 the evening of January

31 to return some movies they had rented and pick up some others. However, he did not

return home as planned. Hazlitt called Rosling and learned that he had run into some

friends. Hazlitt did not see Rosling again until he returned home from skiing at around

4:00 p.m. the following day. She testified that when she had last seen Rosling the

previous evening, he was wearing a coat, jeans, and a long-sleeved shirt and when he

returned the following day, he was wearing the same coat but new sweatpants and a

different shirt. Upon arriving home, Rosling took a shower and laundered his clothes. At

about 7:15 p.m., a detective with the Helena Police Department arrived at Hazlitt’s house

and arrested Rosling on an outstanding misdemeanor warrant. The detective also

collected Rosling’s clothes, shoes, and cell phone and had Rosling’s car transported to

the State Crime Lab for processing.

¶15 Rosling waived his Miranda rights and gave two statements to authorities, one the

evening of February 1 and the other the morning of February 2. Portions of his

statements were inconsistent with each other and with the timeline of events established

by investigators for the morning of February 1. For example, Rosling gave several

different times that he had been at Wal-Mart that morning, including 7:00, 7:30, and 9:00.

Notably, the 7:00 and 7:30 times conflicted with Rosling’s statement that after dropping

Jessica and Taylor off at the Valley Hub bar, he returned to East Helena and slept in his

car for 3 or 3½ hours outside the residence where the party had been held. Moreover, it

seemed implausible that Rosling would have slept in his car for several hours, given the

frigid temperatures that morning and the fact that he earlier had been offered a place to

7
sleep inside the East Helena residence. Rosling also stated that he arrived at Great Divide

Ski Area between 10:30 and 11:00 a.m., but a receipt indicated that he made purchases at

Shopko at 11:15 a.m. Rosling’s account of his activities was also inconsistent with the

phone records obtained by the police.

¶16 One of the investigating detectives testified that Rosling admitted to using

methamphetamine. The detective further testified that he collected biological samples

from Rosling, including hair and urine samples, and that the forensic report on the urine

sample indicated that Rosling had methamphetamine in his system.

¶17 Deborah Hewitt, a forensic scientist at the State Crime Lab, testified that the size-

12 shoeprints found in the snow outside Jessica’s home were consistent in size, shape,

and tread design with Rosling’s shoes. However, Hewitt acknowledged that none of the

fingerprints in Jessica’s home were Rosling’s and that a palm print at the scene could not

be positively linked to Rosling.

¶18 Alice Ammen, another forensic scientist at the State Crime Lab, testified that a

quarter-inch reddish facial hair had been found on the plastic bag over Jessica’s head.

Ammen compared this hair to facial hairs obtained from three subjects: Rosling, Richard

Dooley, and John Fleming (a friend of Jessica who had been seeing her on a regular basis

in January 2004). Ammen was able to exclude Richard and Fleming, but she was not

able to exclude Rosling as the contributor of the hair. She conceded that she could not

say when and how the hair got onto the bag.

¶19 Stacey Brown, a DNA analyst at the State Crime Lab, testified concerning a

variety of evidence collected by investigators. She stated that the blue shorts found in the

8
bathroom sink smelled distinctly of urine and contained a lot of “flaky material.” Based

on her experience, she stated that the flaky material appeared to be fecal matter, though

she acknowledged that she was not able to say conclusively, based on her analysis, that

Jessica had worn these shorts on the night in question. Brown explained that fecal matter

“is a rather harsh environment for DNA” and that DNA analysis, therefore, is not always

possible. But she tested some of the fecal matter found at the scene and determined that

it was of human origin. Brown also analyzed biological samples taken from Jessica’s

vaginal and anal area and did not find any indications of sexual assault.

¶20 Brown also testified concerning blood that was discovered in Rosling’s car and on

Rosling’s clothing. According to Brown, although there were weak indications of blood

on the interior of the vehicle, the results were largely inconclusive. Brown also found

indications of blood on Rosling’s shoes, but they were so weak that she did not perform

species testing on them to determine if it was human blood. Brown also found

indications of blood on different parts of Rosling’s coat. Although some of the blood

could not be identified through DNA or species testing, Brown determined that a spot of

blood on the upper portion of Rosling’s coat came from Jessica. In addition, Jessica

could not be excluded as the contributor of two other blood stains on the coat. On cross-

examination, Brown acknowledged that this blood could have come from nicks or cuts on

Jessica’s hands.

9
¶21 At the close of the State’s case-in-chief, Rosling made a motion to dismiss all of

the charges for insufficient evidence.2 The District Court initially denied the motion with

respect to all but the aggravated kidnapping charge. The court questioned the prosecutor

as to what evidence supported aggravated kidnapping. In response, the prosecutor argued

that there was evidence Jessica had been strangled in her bedroom to the point that she

defecated, although this was not the cause of death, and then she was taken by force into

the bathroom. The prosecutor further argued that removing Jessica from one place to the

other was kidnapping and that her bathroom qualified as “a place of isolation” as

contemplated by § 45-5-303(1), MCA. On the question of “restrain[t]” under § 45-5-

303(1), MCA, the prosecutor offered three theories: (1) Jessica was restrained when she

was strangled, (2) Jessica was restrained when she was taken by force to the bathroom,

and (3) Jessica was restrained when the stab wounds were inflicted, since, according to

the prosecutor, “[v]ery few of [the 67 stab wounds] would have been fatal. They were to

2
Although defense counsel correctly moved to dismiss, the District Court inquired
whether she was “properly” asking for a directed verdict. Likewise, on appeal, Rosling
and the State both refer to his motion made at the close of the State’s case as one for a
directed verdict. Although our caselaw contains many references to a “motion for a
directed verdict,” we recently noted that there is no statutory authority for using this
terminology. See State v. McWilliams, 2008 MT 59, ¶ 36, ___ Mont. ___, ¶ 36, ___ P.3d
___, ¶ 36. Rather, § 46-16-403, MCA, refers to the motion, made “at the close of the
prosecution’s evidence or at the close of all the evidence,” as one to “dismiss the action”
because “the evidence is insufficient to support a finding or verdict of guilty.” The
correct designation, therefore, is a “motion to dismiss for insufficient evidence”—not a
“motion for a directed verdict”—and we urge the bench and bar to refer to such motions
accordingly. In addition, we note here that this is only a matter of terminology; the
standard for granting or denying a motion to dismiss for insufficient evidence and our
standard of review on appeal are no different than the standards applicable to what we
heretofore have termed a “motion for a directed verdict.” See McWilliams, ¶ 37; State v.
Swann, 2007 MT 126, ¶¶ 16, 19, 337 Mont. 326, ¶¶ 16, 19, 160 P.3d 511, ¶¶ 16, 19.
These standards are set forth in ¶¶ 33 and 35 below.

10
terrorize her.” The court expressed some skepticism as to the State’s theories but denied

Rosling’s motion on the aggravated kidnapping charge “for now.”

¶22 Rosling testified in his defense. He stated that when he dropped Jessica off at her

vehicle parked at the Valley Hub bar, she repeated an earlier invitation for him to come to

her house and sit in the hot tub. Although he accepted the invitation, Rosling instead

drove to Hazlitt’s house to retrieve some clothes and gear for skiing later that day.

Rosling testified that Hazlitt had called him several times throughout the night and was

angry with him for staying out all night drinking with his friends. Thus, upon arriving at

her house, rather than face Hazlitt, Rosling went directly to the detached garage to get his

ski clothing, though all he could find was long underwear. He decided that he would buy

a new pair of goggles and gloves.

¶23 Rosling then left Hazlitt’s house and returned to East Helena, apparently with the

intention of sleeping at the house where the party had been held. After searching for

about 20 minutes, he located the house; but once there, he did not go in. Rosling testified

that at this particular time, he was feeling “really indecisive” and was still considering

going to Jessica’s to sit in the hot tub. So, he sat outside in his car for about 5 to 10

minutes and then decided to take Jessica up on her invitation.

¶24 When he got to Jessica’s house, which he testified he had some difficulty finding,

Rosling knocked on the front door. There was no answer, so he knocked briefly on a

second door next to the garage. Again, there was no answer, and he thought maybe she

had gone to sleep. So, he decided to go knock on her window. He walked around the

garage and hopped over the back fence. Once in the back yard, he saw the hot tub and

11
noticed that the sliding glass door between the house and the hot tub area was open

slightly. Rosling thought this meant that Jessica was getting prepared for the hot tub and

was expecting him.

¶25 According to Rosling, he entered the house through the sliding glass door and

called out to Jessica a couple of times. He proceeded through the house and eventually

noticed feet on the bathroom floor. He pushed the bathroom door open and discovered

the body of a woman lying on the floor, which he assumed was Jessica. Rosling testified

that there was blood all over the bathroom, but he did not see any fire. Rosling

immediately left the house, ran back to his car, and drove away. According to Rosling,

these events occurred at around 7:30 a.m.

¶26 Rosling explained at trial that he did not call 911 to report what he had seen

because he had been drinking and doing drugs and because it seemed to him that Jessica

did not need help (since she appeared to be dead). Rosling testified that after he left

Jessica’s house, he felt “shock, disbelief” and just wanted “to leave” and “get up to that

ski hill fast.” He drove to a number of stores, including Wal-Mart, Bob Wards sporting

goods, Target, Shopko, and Capital Sports and Western, to gather supplies for skiing.

¶27 Rosling admitted during cross-examination that he was untruthful with detectives

“a number of times” during their investigation. For example, Rosling admitted he was

untruthful when he told one of the detectives that he was not interested in Jessica.

Rosling also admitted he was untruthful when he told the detective that he had slept in his

car outside the house in East Helena. Rosling admitted he was untruthful when he told

his friend Beau Breneman the same thing (i.e., that he had slept in his car outside the East

12
Helena residence). In addition, Rosling admitted he was untruthful when he told Hazlitt

at around 1:30 that morning that he would be right home, and Rosling admitted he was

untruthful when he told Hill that Hazlitt would not let him into her house after the party.

¶28 The prosecutor also questioned Rosling about his jeans, noting that sometime

between leaving Jessica’s house and walking into Wal-Mart, he changed out of the jeans

and into long underwear. Rosling stated that he had done so in his car—notwithstanding

the facts that he had to “manipulate [his] way around the steering column” in the process

and that he was aware Wal-Mart had dressing rooms. However, Rosling maintained that

there was not any blood on his jeans and that the jeans seized by the detective were the

same jeans he had been wearing that night.

¶29 At the conclusion of all the evidence, Rosling requested a ruling on the record

concerning his motion to dismiss for insufficient evidence made at the close of the State’s

case, particularly with respect to the aggravated kidnapping charge. The court stated that

the motion was denied.

¶30 The jury found Rosling guilty on Count I and Counts III through VI. The District

Court entered judgment on January 19, 2005, sentencing Rosling on Count I to life in

prison without the possibility of parole, on Count III to life in prison, on Count IV to 40

years in prison, on Count V to 10 years in prison, and on Count VI to 5 years in prison.

The court ordered that these sentences were to run concurrently. Rosling now appeals.

¶31 Additional facts are set forth below as they relate to the specific issues on appeal.

DISCUSSION

13
¶32 Issue 1. Did the District Court err in denying Rosling’s motion to dismiss all of
the charges for insufficient evidence?

Standard of Review

¶33 Rosling and the State dispute the appropriate standard of review of a district

court’s denial of a motion to dismiss for insufficient evidence under § 46-16-403, MCA.

Rosling argues that the standard is de novo, while the State maintains that the standard is

abuse of discretion. This dispute, however, is now moot in light of State v. Swann, 2007

MT 126, 337 Mont. 326, 160 P.3d 511, which was decided after the briefing in this case

was completed. In Swann, we clarified that the proper standard of review of a denial of a

motion to dismiss for insufficient evidence (heretofore, a “motion for a directed verdict,”

see ¶ 21 n. 2, supra) is de novo, and we overruled our prior cases to the extent that they

stand for a different standard of review. See Swann, ¶¶ 16-19; see also State v.

McWilliams, 2008 MT 59, ¶ 37, ___ Mont. ___, ¶ 37, ___ P.3d ___, ¶ 37.

Counts I, IV, and V

¶34 As noted above, the State charged Rosling with Count I – deliberate homicide, in

violation of § 45-5-102(1)(a), MCA; Count IV – aggravated burglary, in violation of

§ 45-6-204(2)(b), MCA; and Count V – tampering with or fabricating physical evidence,

in violation of § 45-7-207(1)(a), MCA. Rosling asserts that the District Court erred in

denying his motion to dismiss each of these charges for insufficient evidence. He further

14
asserts that the evidence at the conclusion of trial was insufficient to prove the elements

of these charges.3

¶35 A motion to dismiss for insufficient evidence is appropriate only if, viewing the

evidence in the light most favorable to the prosecution, there is not sufficient evidence

upon which a rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt. Section 46-16-403, MCA; Swann, ¶¶ 16, 19. Rosling argues that there

was no direct evidence that he committed any of the foregoing offenses, and he contends

that the circumstantial evidence presented by the State was not legally sufficient to justify

a jury in determining guilt beyond a reasonable doubt.

¶36 “Circumstantial evidence” is that which tends to establish a fact by proving

another and which, though true, does not of itself conclusively establish that fact but

affords an inference or presumption of its existence. Section 26-1-102(1), MCA. When

circumstantial evidence is susceptible to two reasonable interpretations, one which

supports guilt and the other which supports innocence, the trier of fact determines which

interpretation is most reasonable. State v. Hall, 1999 MT 297, ¶ 22, 297 Mont. 111, ¶ 22,

991 P.2d 929, ¶ 22. Circumstantial evidence alone may be sufficient to obtain a

conviction. State v. Southern, 1999 MT 94, ¶ 92, 294 Mont. 225, ¶ 92, 980 P.2d 3, ¶ 92;

State v. Vukasin, 2003 MT 230, ¶ 20, 317 Mont. 204, ¶ 20, 75 P.3d 1284, ¶ 20.

Circumstantial evidence must only be of such a quality and quantity as to legally justify a

3
Rosling briefs Counts I, IV, and V together. He provides a separate and more
involved analysis of Count III (the aggravated kidnapping charge), which we address
separately below. We also address Count VI (the criminal possession of dangerous drugs
charge) separately below.

15
jury in determining guilt beyond a reasonable doubt, and all facts and circumstances must

be considered collectively. Southern, ¶ 92.

¶37 A person commits the offense of deliberate homicide if the person “purposely or

knowingly causes the death of another human being.” Section 45-5-102(1)(a), MCA. A

person acts purposely with respect to a result if it is the person’s conscious object to

cause that result. Section 45-2-101(64), MCA. A person acts knowingly with respect to

a result when the person is aware that it is highly probable that the result will be caused

by the person’s conduct. Section 45-2-101(34), MCA.

¶38 A person commits the offense of aggravated burglary if the person “knowingly

enters or remains unlawfully in an occupied structure with the purpose to commit an

offense therein and . . . in effecting entry or in the course of committing the offense or in

immediate flight thereafter, [the person] purposely, knowingly, or negligently inflicts or

attempts to inflict bodily injury upon anyone.” Section 45-6-204(2)(b), MCA (paragraph

breaks omitted). A person enters or remains unlawfully in an occupied structure when

the person “is not licensed, invited, or otherwise privileged to do so.” Section 45-6-

201(1), MCA. “Bodily injury” means physical pain, illness, or an impairment of physical

condition and includes mental illness or impairment. Section 45-2-101(5), MCA.

¶39 A person commits the offense of tampering with or fabricating physical evidence

“if, believing that an official proceeding or investigation is pending or about to be

instituted, [the person] . . . alters, destroys, conceals, or removes any record, document, or

thing with purpose to impair its verity or availability in such proceeding or investigation.”

Section 45-7-207(1)(a), MCA (paragraph break omitted).

16
¶40 Rosling asserts that “[t]he mere fact that [he] was placed near [Jessica’s] house”

on the morning of February 1, 2004, “does not mean that [he] entered the house and

stabbed Jessica to death,” “does not establish beyond a reasonable doubt that he entered

the house with the intent to commit a felony,” and “does not establish beyond a

reasonable doubt that he tried to burn evidence and thereby escape detection.” Rosling

argues that in light of the nature and number of stab wounds, “a rational jury would

expect that the assailant would have a great deal of blood or other genetic material on his

or her person, clothing or shoes”; yet, “[t]he state’s experts did not find Jessica’s blood

on Rosling’s shoes or pants.” Rosling acknowledges that Jessica’s blood was found on

his coat, but he points out that Jessica had blood on her hand from playing quarters at the

East Helena party and that her blood “could have transferred from Jessica’s hand to

[Rosling’s] coat” due to their “proximity” when he drove her back to the Valley Hub bar.

Finally, Rosling asserts that the hair found at the crime scene “was insufficient to permit

the jury to convict [him].”

¶41 In response, the State points out that “a highly observant” neighbor saw Rosling

arrive in the vicinity of Jessica’s house at around 6:00 a.m. and leave at around 8:00 a.m.

and that this neighbor, who was “vigilantly alert,” did not see other cars come and go. In

addition, the State observes that Rosling’s shoeprints were found in Jessica’s yard and

that the facial hair found on the plastic bag wrapped around Jessica’s head could be

excluded as belonging to other possible suspects but could not be excluded as Rosling’s.

Furthermore, the State notes that of all the clothing analyzed at the crime lab, Jessica’s

blood was only on Rosling’s clothing; and with respect to Rosling’s contention as to the

17
amount of blood one might expect to find on the assailant’s person, clothing, or shoes, the

State points out that Rosling laundered his clothes later that day. Finally, the State argues

that while every other potential suspect could give a corroborated account of his or her

time between leaving the East Helena party and Jessica’s body being discovered, Rosling

could not.

¶42 Considering all of the facts and circumstances collectively, and viewing the

evidence in the light most favorable to the prosecution, we do not agree with Rosling that

at the close of the State’s case, there was insufficient evidence upon which a rational trier

of fact could find the essential elements of Counts I, IV, and V beyond a reasonable

doubt. According to the State’s evidence, Rosling was with Jessica the night of her

death. They were both drinking, and Rosling ingested methamphetamine. Rosling gave

Jessica a ride to her car when the party in East Helena broke up, and Rosling apparently

was the last person to see Jessica alive. Jessica was murdered in her house, and Rosling’s

car was seen parked near the house early that Sunday morning around the time of the

murder. Jessica died from the multiple cutting and stab wounds, of which there were

about 28 cutting wounds and 67 stab wounds. Magazines had been placed under her legs

and set on fire. Shoeprints matching the size, shape, and tread design of Rosling’s shoes

were discovered leading to the patio area behind Jessica’s house at a normal walking pace

and leaving across the driveway at a hurried pace. One of Jessica’s neighbors testified

that a man matching Rosling’s general description hurriedly left Jessica’s house and

drove away in Rosling’s car at approximately 8:00 a.m. Jessica’s father arrived at the

house at about this same time and, shortly thereafter, discovered Jessica’s body and the

18
burning magazines. There were indications of blood on Rosling’s shoes. A spot of

Jessica’s blood was discovered on Rosling’s coat, and she could not be excluded as the

contributor of two other blood stains on the coat. Rosling wore jeans during the course of

the night but walked into Wal-Mart at 8:20 a.m. wearing long underwear. He had cuts on

his hands. He was unable to account accurately for his whereabouts that morning, and he

gave the police inconsistent statements concerning his actions during the evening before

and the morning of the murder.

¶43 The State’s evidence against Rosling was circumstantial, no one having actually

seen him commit the offenses of deliberate homicide, aggravated burglary, and tampering

with or fabricating physical evidence. And we agree with Rosling that presence at a

crime scene is insufficient, by itself, to prove criminal liability. See Southern, ¶ 94; State

v. Johnston, 267 Mont. 474, 481, 885 P.2d 402, 406 (1994). However, the State’s

evidence did not merely place Rosling at the scene of Jessica’s murder; it connected him

to that crime. Although the State’s evidence was susceptible to two reasonable

interpretations—one pointing to Rosling’s guilt and the other pointing to an alternative

explanation of how he came to have Jessica’s blood on his coat, why he was seen

hurriedly leaving her house around the time of the murder, and why he changed out of his

jeans and into long underwear before walking into Wal-Mart—this does not mean that

the evidence was insufficient to support a verdict of guilty. It was the province of the

jury to decide which interpretation of the evidence was most reasonable. See Hall, ¶ 22.

Accordingly, after a review of the record, we hold that the State’s circumstantial evidence

was of sufficient quality and quantity that a rational trier of fact could find Rosling guilty

19
beyond a reasonable doubt of Counts I, IV, and V. Cf. Southern, ¶¶ 91-94. The District

Court did not err in denying Rosling’s motion to dismiss for insufficient evidence as to

these three charges.

¶44 As for Rosling’s contention that the evidence at the conclusion of trial was

insufficient to prove the elements of Counts I, IV, and V, we note that in addition to the

foregoing evidence produced by the State, Rosling admitted during his testimony that he

had been untruthful with the investigators, his girlfriend, and some of his friends

regarding the events of January 31 and February 1. He admitted that he was at Jessica’s

house the morning of her death not long before her body was discovered by her father.

His account was fraught with inconsistencies and was contradicted by a number of the

State’s witnesses. Although Rosling insisted that Jessica was already dead when he

entered her house and found her on the bathroom floor, it was up to the jury to decide

which version of events—the State’s or Rosling’s—to believe. See State v. McGarvey,

2005 MT 308, ¶¶ 19-20, 329 Mont. 439, ¶¶ 19-20, 124 P.3d 1131, ¶¶ 19-20. We hold

that the evidence at the conclusion of trial was sufficient for a rational trier of fact to find

the elements of Counts I, IV, and V beyond a reasonable doubt.

Count III

¶45 Rosling was charged under Count III with aggravated kidnapping, in violation of

§ 45-5-303(1)(c), MCA. A person commits this offense if the person “knowingly or

purposely and without lawful authority restrains another person by either secreting or

holding the other person in a place of isolation or by using or threatening to use physical

force, with any of the following purposes: . . . to inflict bodily injury on or to terrorize the

20
victim or another . . . .” Section 45-5-303(1)(c), MCA (paragraph breaks omitted).

Although the State must prove restraint, a specific period of restraint is not an element of

this offense; in other words, the statute does not require specific proof regarding duration

of restraint. State v. Smith, 228 Mont. 258, 263-64, 742 P.2d 451, 454 (1987).

¶46 In the context of this case, therefore, the State had to produce sufficient evidence

upon which a rational trier of fact could find beyond a reasonable doubt that Rosling

knowingly or purposely and without lawful authority restrained Jessica by either

secreting or holding her in a place of isolation or by using or threatening to use physical

force, with the purpose of inflicting bodily injury on or terrorizing her. We conclude that

the State did so.

¶47 Based on the evidence produced by the State, a reasonable jury could have found

that Rosling was high on methamphetamine and alcohol during the early morning hours

of February 1, 2004; that he accosted and terrorized Jessica in her home over a protracted

period of time; that he brutalized her by strangling her to the point that she defecated in

her bedroom; that he dragged her or forced her into the bathroom; that he then stabbed

her 67 times and cut her 28 times, thereby causing her death; and that during some or

most of this period, Jessica was alive, in mortal fear, and fighting desperately for her life.

¶48 Rosling contends, however, that the State did not prove that he “restrained” Jessica

by either secreting or holding her in a place of isolation or by using or threatening to use

physical force. First, Rosling argues that the bathroom was not “a place of isolation” as

contemplated by § 45-5-303(1), MCA. The statute, however, is written in the

disjunctive: “A person commits the offense of aggravated kidnapping if the person

21
knowingly or purposely and without lawful authority restrains another person by either

secreting or holding the other person in a place of isolation or by using or threatening to

use physical force, with any of the following purposes . . . .” Section 45-5-303(1), MCA

(emphasis added). Thus, the State was not necessarily required to prove that Rosling

restrained Jessica “by either secreting or holding [her] in a place of isolation.” The State

could prove instead that Rosling restrained Jessica “by using or threatening to use

physical force.”

¶49 Second, Rosling argues that the State “failed to prove that [Jessica] was restrained

in the bedroom, and then removed.” Rosling points out that “Dr. Dale testified merely

that sometimes a person who is choked may soil himself or herself. It is not automatic.”

Rosling contends that “[a] reasonable jury could find, based on the state’s evidence, only

that some person defecated in a bedroom, and made some attempt to clean up or wipe it

up with a coat.” Rosling further contends that

[t]he state’s evidence indicates that [Jessica] soiled herself, tried to clean
up, and was in the bathroom. The only alternative is that someone else-
presumably the attacker- made some attempt to clean up the bedroom and
rinse out shorts after Jessica was killed, but made no attempt to clean up the
blood. This would be an irrational finding, to say the least.

¶50 We do not agree that the State’s evidence is only subject to this particular

interpretation. To the contrary, the evidence is also reasonably subject to a finding that

Jessica was accosted and terrorized in her bedroom and was strangled to the point that

she defecated there, after which she was dragged or forced into the bathroom, where she

was stabbed 67 times and cut 28 times, thereby causing her death. Just because there

may have been an attempt to clean up the fecal matter in the bedroom, but not the blood

22
in the bathroom, does not lead inevitably to the conclusion that Jessica was not restrained

in the bedroom. Another reasonable interpretation of the evidence is that the assailant did

not have the time or the ability to finish cleaning up the crime scene and disposing of the

incriminating evidence. Yet another interpretation is that the assailant, after cleaning up

some of the fecal matter, decided instead to burn all of the evidence (only to be thwarted

by the arrival of Richard Dooley at a time when the fire could still be contained). As

explained above, when circumstantial evidence is susceptible to more than one

reasonable interpretation, the trier of fact determines which interpretation is most

reasonable. See Hall, ¶ 22.

¶51 Lastly, Rosling argues that the act of homicide itself does not also constitute

restraint for purposes of kidnapping. In other words, the act of killing Jessica by stabbing

and cutting her repeatedly “does not provide the requisite restraint,” since any such

restraint would have been “incidental” to the act of killing her. In this regard, Rosling

cites a number of cases from other jurisdictions for the proposition that kidnapping

statutes do not apply to unlawful confinements or movements that are “incidental” to the

commission of another felony. See e.g. State v. Stouffer, 721 A.2d 207, 212 (Md. 1998);

State v. Goodhue, 833 A.2d 861, 864-65 (Vt. 2003); Hoyt v. Commonwealth, 605 S.E.2d

755, 757 (Va.App. 2004); State v. Fuller, 172 S.W.3d 533, 536-38 (Tenn. 2005); see

generally Frank J. Wozniak, Seizure or Detention for Purpose of Committing Rape,

Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R.5th

283 (1996). Rosling suggests that if the State’s “broad interpretation” of § 45-5-303(1),

23
MCA, were adopted, “every intentional killing would also constitute aggravated

kidnapping.”

¶52 It appears from Rosling’s argument that he views the factual bases for the

aggravated kidnapping and deliberate homicide charges in this case as identical or

inseparable—i.e., the act of restraining Jessica in the bathroom in order to inflict 67 stab

wounds and 28 cutting wounds is “incidental” to committing deliberate homicide and,

thus, cannot also sustain a charge of aggravated kidnapping. However, as explained

above, the State’s evidence supported a finding that Jessica was restrained in her

bedroom by use of physical force—in particular, neck compression or strangulation—for

the purpose of inflicting bodily injury on or terrorizing her. Dr. Dale testified that the

strangulation was not the cause of her death. Rather, the cause of her death was the

multiple cutting and stab wounds, which the evidence suggests were all inflicted in the

bathroom. The factual bases for the two charges, therefore, were entirely distinct; and

Rosling’s concern—namely, that simultaneous application of the deliberate homicide and

aggravated kidnapping statutes to the facts of this case would result in every intentional

killing also being an aggravated kidnapping—is misplaced.

¶53 Again, for purposes of Count III, a motion to dismiss for insufficient evidence

should have been granted only if, viewing the evidence in the light most favorable to the

prosecution, there was not sufficient evidence upon which a rational trier of fact could

find that Rosling knowingly or purposely and without lawful authority restrained Jessica

by using physical force, with the purpose of inflicting bodily injury on or terrorizing her.

Sections 45-5-303(1)(c), 46-16-403, MCA; Swann, ¶¶ 16, 19. After a review of the

24
record, we hold that the State’s circumstantial evidence was of sufficient quality and

quantity that a rational trier of fact could find Rosling guilty beyond a reasonable doubt

of Count III. The District Court did not err in denying Rosling’s motion to dismiss for

insufficient evidence as to this charge.

¶54 We reach the same conclusion with respect to Rosling’s contention that the

evidence at the conclusion of trial was insufficient to prove the elements of aggravated

kidnapping. Although the defense attempted to refute the State’s theory of the case with

testimony supporting an alternative version of events, it was up to the jury to decide

whose version of events to believe. See McGarvey, ¶¶ 19-20. We hold that the evidence

at the conclusion of trial was sufficient for a rational trier of fact to find the elements of

Count III beyond a reasonable doubt.

Count VI

¶55 Rosling was charged under Count VI with criminal possession of dangerous drugs

(methamphetamine), in violation of § 45-9-102, MCA. “A person commits the offense of

criminal possession of dangerous drugs if the person possesses any dangerous drug, as

defined in 50-32-101.” Section 45-9-102(1), MCA. Methamphetamine is a dangerous

drug. See §§ 50-32-101(6), 50-32-224(3)(c), MCA. “Possession” is the knowing control

of anything for a sufficient time to be able to terminate control. Section 45-2-101(58),

MCA. In order to prove that the possession of a dangerous drug was with knowledge, it

is necessary for the State to present evidence that the person was aware he or she

controlled the dangerous drug or was aware of a high probability that he or she controlled

the dangerous drug. Section 45-2-101(34), MCA; In re R.L.H., 2005 MT 177, ¶ 24, 327

25
Mont. 520, ¶ 24, 116 P.3d 791, ¶ 24. The presence of a dangerous drug in one’s body

constitutes circumstantial evidence of prior possession of that substance. R.L.H., ¶ 23.

To establish criminal possession of a dangerous drug, the State must present evidence

that such possession was voluntary. R.L.H., ¶ 24 (citing § 45-2-202, MCA).

¶56 One of the investigating detectives testified during the State’s case-in-chief that

Rosling admitted having used methamphetamine. The detective further testified that the

forensic report on the urine sample collected from Rosling indicated that Rosling had

methamphetamine in his system. In addition, the State called Newly Potter, who was

with Rosling at various times during the evening of January 31 and the morning of

February 1. Potter testified that he knew Rosling used methamphetamine that night.

Furthermore, Rosling admitted during his testimony that he purchased methamphetamine

the weekend before Jessica’s murder, that he kept the methamphetamine in the glove

compartment of his car, and that he ingested some of the drug on the evening of January

31.

¶57 Given this evidence, we conclude that the State presented sufficient evidence upon

which a rational trier of fact could find the essential elements of Count VI beyond a

reasonable doubt. We thus hold that the District Court did not err in denying Rosling’s

motion to dismiss for insufficient evidence as to this charge. We further hold that the

evidence at the conclusion of trial was sufficient for a rational trier of fact to find the

elements of Count VI beyond a reasonable doubt.

¶58 Issue 2. Is the parole-eligibility restriction on Rosling’s sentence illegal?

Standard of Review

26
¶59 We review criminal sentences that include at least one year of actual incarceration

for legality only. State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, ¶ 174, 167 P.3d

815, ¶ 174. Our review is confined to determining whether the sentencing court had

statutory authority to impose the sentence, whether the sentence falls within the

parameters set by the applicable sentencing statutes, and whether the court adhered to the

affirmative mandates of the applicable sentencing statutes. See Ariegwe, ¶ 174. This

determination is a question of law; as such, our review is de novo. Ariegwe, ¶ 175.

Rosling’s Jury Trial Claims

¶60 Again, Rosling was convicted under Count I of deliberate homicide, in violation of

§ 45-5-102(1)(a), MCA. The punishment for this offense is set forth in § 45-5-102(2),

MCA, as follows:

A person convicted of the offense of deliberate homicide shall be
punished by death as provided in 46-18-301 through 46-18-310, unless the
person is less than 18 years of age at the time of the commission of the
offense, by life imprisonment, or by imprisonment in the state prison for a
term of not less than 10 years or more than 100 years, except as provided in
46-18-219 and 46-18-222.

In addition, § 46-18-202(2), MCA, provides as follows:

Whenever the sentencing judge imposes a sentence of imprisonment
in a state prison for a term exceeding 1 year, the sentencing judge may also
impose the restriction that the offender is ineligible for parole and
participation in the supervised release program while serving that term. If
the restriction is to be imposed, the sentencing judge shall state the reasons
for it in writing. If the sentencing judge finds that the restriction is
necessary for the protection of society, the judge shall impose the
restriction as part of the sentence and the judgment must contain a
statement of the reasons for the restriction.

27
¶61 Pursuant to these two statutes, the District Court sentenced Rosling on Count I to

life imprisonment without the possibility of parole. In its written judgment, the court

provided the following reasons:

The Court finds that the defendant should be ineligible for parole, in
that this was one of the most brutal and horrific crimes ever seen by this
Court. Because of the nature of the offenses, the Court does not believe
that the defendant can ever be rehabilitated, and he poses a serious risk to
society.

¶62 On appeal, Rosling contends that imposition of the parole-eligibility restriction

violated his rights to due process and a jury trial guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and by Article II, Sections 17, 24, and 26

of the Montana Constitution. In addition, he contends that imposition of the restriction

contravened § 46-1-401, MCA, which codifies the mandates of the Sixth and Fourteenth

Amendments as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348 (2000), and its progeny.

¶63 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. In Blakely v. Washington, 542 U.S.

296, 124 S. Ct. 2531 (2004), the Supreme Court clarified that the “statutory maximum”

for Apprendi purposes is “the maximum sentence a judge may impose solely on the basis

of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S.

at 303, 124 S. Ct. at 2537 (emphasis omitted). In other words, “the relevant ‘statutory

maximum’ is not the maximum sentence a judge may impose after finding additional

28
facts, but the maximum he may impose without any additional findings.” Blakely, 542

U.S. at 303-04, 124 S. Ct. at 2537. Relying on Apprendi and Blakely, Rosling argues that

the parole-eligibility restriction on his sentence is illegal and beyond the District Court’s

authority because it is based on facts not found by a jury beyond a reasonable doubt.

¶64 We considered this same issue in State v. Garrymore, 2006 MT 245, 334 Mont. 1,

145 P.3d 946, which was decided after the briefing in this case was completed.

Following an analysis of §§ 45-5-102(2) and 46-18-202(2), MCA, we concluded that “the

statutory maximum punishment for the crime of deliberate homicide when the death

penalty is not sought, for the purposes of Apprendi, is life imprisonment without the

possibility of parole.” Garrymore, ¶ 32. In other words, life imprisonment without the

possibility of parole is within the range of punishments authorized by a jury’s guilty

verdict on a deliberate homicide charge under § 45-5-102(1), MCA. Furthermore, we

concluded that this logic applied to both Garrymore’s federal constitutional claim and his

claim under § 46-1-401, MCA. See Garrymore, ¶¶ 34, 37.

¶65 Likewise, in the case at hand, since the State did not seek the death penalty, the

maximum punishment authorized by the jury’s verdict of guilty on Count I was life

imprisonment without the possibility of parole. For this reason, and based on the analysis

set forth in ¶¶ 24-37 of Garrymore, we hold that imposition of the parole-eligibility

restriction on Rosling’s sentence did not violate his rights under the Sixth and Fourteenth

Amendments and did not contravene § 46-1-401, MCA.

¶66 As for Rosling’s claim based on Article II, Sections 17, 24, and 26 of the Montana

Constitution, his supporting argument consists of one paragraph in which he points out,

29
correctly, that “this Court has applied these state guarantees in a manner which affords

more protection that [sic] does the Sixth Amendment.” As an example, he cites

Woirhaye v. District Court, 1998 MT 320, 292 Mont. 185, 972 P.2d 800, in which we

construed Article II, Sections 24 and 26, as affording a greater jury trial right than does

the Sixth Amendment. However, Rosling does not explain what greater protection—i.e.,

what protection over and above the protection afforded by the Sixth and Fourteenth

Amendments as interpreted in Apprendi and its progeny—is afforded by Article II,

Sections 17, 24, and 26, within the context of this case. Woirhaye, which applied the jury

trial right in an entirely different context, does not provide an answer. Thus, as we did in

Garrymore, we conclude here that Rosling’s argument is too undeveloped to undertake a

distinctive application of state constitutional principles, and we will not consider the

argument further. See Garrymore, ¶¶ 38-39.

¶67 We hold that the parole-eligibility restriction on Rosling’s life sentence is not

illegal based on his jury trial claims.

Rosling’s Evidentiary Claim

¶68 In sentencing Rosling to life imprisonment without the possibility of parole, the

District Court explained in open court that

this is a brutal and horrific offense. I think everybody here agrees with that.
And I also feel this is necessary to protect society, because there has been
no evidence presented to me, and I know of none, that there is any
treatment program known to man that would cure whatever it is that caused
this horrific crime.

Likewise, as noted above, the court stated in its written judgment:

30
 The Court finds that the defendant should be ineligible for parole, in
that this was one of the most brutal and horrific crimes ever seen by this
Court. Because of the nature of the offenses, the Court does not believe
that the defendant can ever be rehabilitated, and he poses a serious risk to
society.

¶69 Based on the foregoing, Rosling argues that the lack of prospects for his

rehabilitation was “the primary basis” for imposing the parole-eligibility restriction on his

sentence. But, he contends, the evidence before the District Court did not support the

court’s determination that he cannot be rehabilitated. Thus, Rosling asserts that there is

no basis for the parole-eligibility restriction on his sentence. We disagree.

¶70 Sentencing judges have broad discretion to impose parole-eligibility restrictions

on sentences that exceed a one-year term of imprisonment. See Garrymore, ¶ 27.

However, if a parole-eligibility restriction is imposed, the sentencing judge is required to

state the reasons for it in writing. See § 46-18-202(2), MCA (“If the restriction is to be

imposed, the sentencing judge shall state the reasons for it in writing.” (emphasis

added)). Furthermore, a convicted criminal defendant has a due process right to be

sentenced based on correct information. State v. Harper, 2006 MT 259, ¶ 18, 334 Mont.

138, ¶ 18, 144 P.3d 826, ¶ 18; State v. Mason, 2003 MT 371, ¶ 21, 319 Mont. 117, ¶ 21,

82 P.3d 903, ¶ 21. Thus, a parole-eligibility restriction that is not accompanied by

written reasons or that is based on materially false information is illegal.

¶71 Here, however, Rosling provides nothing more than a conclusory assertion that the

District Court’s cannot-be-rehabilitated determination is incorrect or not supported by the

evidence. There was testimony at the sentencing hearing, from the probation officer who

prepared the presentence investigation report and from the mitigation specialist, to the

31
effect that the counseling and treatment Rosling received for emotional and chemical-

dependency issues at various points in his childhood and adolescent years were

ineffective. Furthermore, at the outset of pronouncing sentence, the judge noted that

while Rosling maintained his innocence, the jury had found him guilty of “one of the

most brutal and horrific offenses I have seen,” and we agree that the nature and

surrounding circumstances of the offense inform the question of the defendant’s

prospects for rehabilitation.

¶72 Moreover, even if the “primary” basis for imposing the parole-eligibility

restriction was, as Rosling claims, the lack of prospects for rehabilitation, it was not the

only basis. It is appropriate for a sentencing court to 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. State v. Shreves, 2002 MT 333, ¶ 13, 313 Mont. 252,

¶ 13, 60 P.3d 991, ¶ 13. Here, the sentencing judge heard all of the evidence presented at

trial concerning Rosling’s actions. Further information about Rosling’s character, social

history, mental health history, family history, and employment history was presented at

the sentencing hearing through the reports and testimony of the probation officer and the

mitigation specialist, as well as the testimony of Hazlitt (Rosling’s girlfriend) and

Rosling’s mother. It was only after consideration of all of this information that the judge

imposed the parole-eligibility restriction. Again, the judge stated that this was one of the

most brutal and horrific crimes he had ever seen. In this regard, Rosling acknowledges

that the heinous nature of the crime is sufficient reason for imposing a parole-eligibility

32
restriction. See State v. Christianson, 1999 MT 156, ¶¶ 36-39, 295 Mont. 100, ¶¶ 36-39,

983 P.2d 909, ¶¶ 36-39.

¶73 This Court has never set forth a litmus test that must be met before a parole-

eligibility restriction may be imposed; rather, we have left that decision to the sentencing

court’s discretion based on all of the relevant facts. See Christianson, ¶ 38. We hold that

the written reasons provided by the District Court were sufficient, on the record before

us, to impose the parole-eligibility restriction and that the restriction, therefore, is not

illegal based on Rosling’s evidentiary claim.

¶74 Issue 3. Is Rosling’s sentence illegal because the prosecutor referred to a
swastika tattoo on Rosling’s back during the sentencing hearing?

¶75 Rosling claims that the State violated his rights to freedom of speech and freedom

of association under the First Amendment to the United States Constitution and Article II,

Sections 4 and 7 of the Montana Constitution when the prosecutor made the following

argument during the sentencing hearing: “Keep in mind that this defendant at some point

made a deliberate choice to put a swastika on his back with the SS lightening [sic] strikes

on it. What does that tell you about the nature of the individual before us?”

¶76 Rosling, however, did not object to these remarks. It is well-established that on

direct appeal, the appellant is limited to those issues that were properly preserved in the

district court and to allegations that his or her sentence is illegal. State v. McLeod, 2002

MT 348, ¶ 12, 313 Mont. 358, ¶ 12, 61 P.3d 126, ¶ 12; State v. Southwick, 2007 MT 257,

¶¶ 21-23, 339 Mont. 281, ¶¶ 21-23, 169 P.3d 698, ¶¶ 21-23. Thus, because Rosling failed

to preserve this issue by timely objecting to the prosecutor’s remarks, and because he has

33
not raised a plausible allegation that his sentence is illegal due to the remarks, the issue is

not properly before us.

¶77 Apparently recognizing this fact, Rosling asserts that we should address the issue

under our common-law doctrine of plain error review. This Court may discretionarily

review a claimed error that implicates a criminal defendant’s fundamental constitutional

rights—even if a timely objection was not made in the trial court, and notwithstanding

the inapplicability of the criteria set forth in § 46-20-701(2), MCA—where failing to

review the claimed error may result in a manifest miscarriage of justice, may leave

unsettled the question of the fundamental fairness of the trial or proceedings, or may

compromise the integrity of the judicial process. State v. Finley, 276 Mont. 126, 137,

915 P.2d 208, 215 (1996), overruled in part on other grounds, State v. Gallagher, 2001

MT 39, ¶ 21, 304 Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21. We use our inherent power of

common law plain error review sparingly, on a case-by-case basis, and only in the

aforementioned circumstances. Finley, 276 Mont. at 138, 915 P.2d at 215; State v.

Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, ¶ 20, 77 P.3d 224, ¶ 20.

¶78 We conclude that Rosling’s claim with respect to the prosecutor’s remarks is not

appropriate for plain error review. Not every inadvisable comment made by a prosecutor

during a sentencing hearing results in a manifest miscarriage of justice, leaves unsettled

the question of the fundamental fairness of the proceeding, or compromises the integrity

of the judicial process. This is particularly true here, given that there is no indication in

the record that the District Court took the prosecutor’s remarks into consideration in

34
fashioning Rosling’s sentence. Because the record does not support invoking plain error

review, we will not consider this issue further.

CONCLUSION

¶79 The District Court did not err in denying Rosling’s motion to dismiss for

insufficient evidence made at the close of the State’s case with respect to all of the

charges. Furthermore, the evidence at the conclusion of trial was sufficient for a rational

trier of fact to find the elements of each charged offense beyond a reasonable doubt. The

parole-eligibility restriction on Rosling’s sentence is not illegal. Lastly, Rosling’s claim

regarding the prosecutor’s reference during the sentencing proceeding to a swastika tattoo

on Rosling’s back is not properly before us, and we decline to address that claim under

our common-law doctrine of plain error review.

¶80 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

Justice John Warner, concurring and dissenting.

¶81 I concur with the Court that the judgment convicting Rosling of the offenses of

deliberate homicide, aggravated burglary, tampering with or fabricating physical

evidence, and criminal possession of dangerous drugs must be affirmed. I, however,

would vacate Rosling’s conviction for the offense of aggravated kidnapping.

35
¶82 Under the Court’s holding today, almost every murder could justify a kidnapping

charge. Generally speaking, murders typically take place away from other people – that

is, in places of isolation. Also, in any murder where death is not instantaneous, the victim

has necessarily been restrained. Indeed, as noted by other courts, taken to its logical

extreme, the very act of killing another person is the ultimate form of restraint. See

Wash. v. Green, 616 P.2d 628, 636 (Wash. 1980). Such an approach undermines the

concept of kidnapping.

¶83 The purpose of a kidnapping statute, such as § 45-5-303, MCA, is to criminalize

the act of kidnapping, an offense where the movement or secreting of the victim is a

criminal end in itself:

“[I]t is desirable to restrict the scope of kidnapping, as an alternative or
cumulative treatment of behavior whose chief significance is robbery or
rape, because the broad scope of this overlapping offense has given rise to
the serious injustice . . . . The blame cannot be placed exclusively at the
door of the prosecutor for choosing to indict for kidnapping. When an
especially outrageous crime is committed there will always be public
clamor for the extreme penalty which the laws permit, and it is precisely the
obligation of penal legislators to minimize opportunities for such injustice
by clearly and rationally restricting discretion to punish . . . . It is
necessary, therefore, to define an aggravated offense of kidnapping which
shall consist of removal or confinement involving substantial isolation of
the victim where the duration of the isolation, the intention of the
kidnapper, or other circumstances makes the behavior specially terrifying
and dangerous.”

N.J. v. Tronchin, 539 A.2d 330, 333 (N.J. 1988) (quoting Final Report of the New Jersey

Criminal Law Revision Commission, Final Report, Vol. II at 181-183, § 2C:13-1 (1971)).

¶84 Indeed, § 45-5-303(1)(c), MCA, states that the restraint must be for the separate

purpose of inflicting injury or terrorizing the victim. While the instant offense was

36
horrific, there is no evidence that moving Dooley within the house had any purpose other

than to complete the offense of deliberate homicide. Instead, the evidence shows that the

movement between two rooms was only a part of the same attack resulting in her death.

¶85 Because we have not previously dealt with this issue raised by Rosling, it is

appropriate to look at how other jurisdictions have approached the question. Courts have

struggled with whether movement of a victim during the commission of one crime can

also constitute the separate offense of kidnapping. See Frank J. Wozniak, Seizure or

Detention for Purpose of Committing Rape, Robbery, or Other Offense as Constituting

Separate Crime of Kidnapping, 39 A.L.R.5th 283 (1996). Still, most courts hold

kidnapping statutes do not apply to unlawful confinements or movements of the victim

that are incidental to the commission of the other crime. Md. v. Stouffer, 721 A.2d 207,

212 (Md. 1998) (quoting Wozniak, 39 A.L.R.5th at 356); see also e.g. Green, 616 P.2d

628; N.M. v. Vernon, 867 P.2d 407 (N.M. 1993) (movement of victim by car to a remote

location was incidental to victim’s homicide and, thus, was not kidnapping); Minn. v.

Smith, 669 N.W.2d 19 (Minn. 2003) (defendant blocking doorway during attack on

victim was incidental to the actual homicide and, thus, not sufficiently criminally

significant to warrant kidnapping charge); Cal. v. Sheldon, 771 P.2d 1330 (Calif. 1989)

(movement of victim from garage into home too slight to constitute kidnapping); N.C. v.

Cartwright, 629 S.E.2d 318 (N.C. App. 2006) (evidence insufficient to support

conviction of kidnapping where defendant attacked victim in kitchen, then transported

her to den). A bright-line rule is difficult to formulate and, thus, most cases turn on the

particular circumstances:

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 The one thing that seems clear from the decisions following the majority
view is that most of them are fact-specific. Whether the confinement or
movement of the victim is merely incidental to another crime depends, in
nearly every case, on the circumstances . . . . If the victim is not moved too
far, is not held for longer than is necessary to complete the other crime, and
is not subjected to any significant peril from the confinement or movement
itself, if the confinement or movement can reasonably be viewed as
undertaken solely to facilitate the commission of the other crime, and if
commission of the other crime normally involves (even if it does not legally
require) some detention or asportation of the victim, the court is likely to
conclude that the confinement or movement was merely incidental to the
other crime and thus reverse a separate kidnapping conviction. If any of
those factors are missing, however, there is a greater prospect of the court
sustaining a separate kidnapping conviction.

Stouffer, 721 A.2d at 213-14 (citing In re Earley, 534 P.2d 721 (Cal. 1975); S.D. v.

Lykken, 484 N.W.2d 869 (S.D. 1992)).

¶86 In this case, Dooley was not moved very far, only from her bedroom to her

bathroom. There is no evidence that she was restrained for any longer than was

necessary to kill her. Likewise, there is no evidence that she was restrained by being

confined within either the bedroom or the bathroom. She was not subjected to any

additional peril because she moved from one room to the other. It appears that the

movement from the bedroom to the bathroom was only to facilitate the homicide. In

addition, deliberate homicide by inflicting 100 stab wounds requires restraint of the

victim only for long enough to accomplish the goal of death. In this particular case, all of

the evidence indicates that the movement of Dooley between the bedroom and bathroom

of her house was incidental to her homicide.

¶87 Nor is there evidence that the bathroom, with the door open, was intended to be a

place of isolation. Likewise, there is no evidence Rosling had any purpose other than to

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kill Dooley when she was somehow moved from her bedroom to her bathroom. Because

§ 45-5-303(1)(c), MCA, requires that the restraint of the victim be for a purpose separate

from, or in addition to, that of killing her and not merely incidental to another crime, the

evidence in this case is not sufficient to constitute the offense of both aggravated

kidnapping and deliberate homicide.

¶88 In this case, while the attack started in the bedroom and was finished in the

bathroom, the State has presented no evidence that moving Dooley to the bathroom had

any particular end in itself, which § 45-5-303(1)(c), MCA, requires.

¶89 I conclude the evidence is insufficient to establish that Rosling restrained Dooley

and moved her within the house for the purpose of secreting or holding her in a place of

isolation to inflict bodily injury or terrorize her. Thus, Rosling’s motion for a directed

verdict on the charge of aggravated kidnapping should have been granted and I dissent

from the Court’s decision not to vacate that portion of the judgment convicting Rosling of

aggravated kidnapping.

/S/ JOHN WARNER

Justices Patricia O. Cotter and Brian Morris join in the foregoing concurrence and
dissent.

/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

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