State v. Wells

NO. 82-131

I N THE SUPREME COURT O F THE STATE O F M N A A
OTN

1983

THE STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

VS.

GEORGE CLAYTON WELLS,

D e f e n d a n t and A p p e l l a n t .

Appeal from: D i s t r i c t C o u r t o f t h e E i q h t h Jud-i-cia1 D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e
H o n o r a b l e H. W i l l i a m C o d e r , J u d q e p r e s i d i n q .

C o u n s e l o f Record:

For Appellant:

Bauer and K u e t h e r , G r e a t F a l l s , P'Iontana
Mark Bauer a r s u e d and C h a r l e s W. K u e t h e r a r g u e d ,
G r e a t F a l l s , Montana

F o r Respondent :

Hon. T4ike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
James Felean argued, A s s i s t a n t Attorney General,
H e l e n a , Montana
J, F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
Thomas Y c K i t t r i c k argued., Deputy County A t t o r n e y ,
G r e a t F a l l s , Montana

Submitted: September 1 4 , 1982

Decided: February 4 , 1983

Filed:
FEB 4- I983
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendant Wells was convicted in the District Court,
Eighth District, Cascade County, of aggravated assault,
aggravated burglary, and attempted sexual intercourse without
consent. This appeal follows.
In the early morning hours of August 18, 1981, Terry
W., the twelve year old victim of Wells' attack, was asleep

in the bedroom off the living room of her grandparent's hone
in Great Falls. Her grandfather, the only other person in
the house at the time, was asleep in a downstairs bedroom.
At approximately 2 : 3 0 a.m., Terry was awakened from a
light sleep when the defendant pulled the covers off her
body. As she rolled over to look at the intruder, Wells
grabbed her neck and choked her with his left hand as he
held a knife in front of her face with his right hand.
The defendant let loose and Terry scooted to the end of
the bed. She asked what he wanted and he answered, "I want
you." Terry started to run but the defendant grabbed her
and hit her on the back of the head with a knife handle. She
blacked out and fell. When Terry regained consciousness,
she was lying on her stomach on the bed. Defendant stabbed
her six times in the back and then attempted to rape her. At
that point the old kitchen floor suddenly squeaked, startling
defendant and apparently scaring him off.
Terry immediately went downstairs and awakened her
grandfather. He laid her on the bed and called the emergency
number for the police and ambulance. As they waited for the
ambulance, Terry and her grandfather heard footsteps upstairs.
The police and ambulance arrived and Terry was placed on a
stretcher. Terry's grandfather directed the stretcher out
through the back door, a more convenient route to the ambulance.
The grandfather then went to the front porch where he found

defendant standing.
As the police came to the front of the house with the
stretcher, they saw defendant leaving the porch, called to
him, and questioned him. Defendant was covered with blood.
When asked about it, he told officers that he had been in a

fight in Helena and had just returned to Great Falls by bus.
Since the blood was still wet and glistening and since
defendant had no cuts or other wounds, he was taken into
custody. Defendant later told officers that he had been at
home, about a block away, had noticed the commotion and had
just come to see what was happening.
Wells was charged by information on August 24, 1981. On
December 11, 1981, the State moved to amend the information.
The District Court granted that motion, defendant was arraigned
on the amended information, and on December 18, 1981, he

entered his pleas of not guilty to each count. At that time,
defendant moved to assert an alibi defense. The District
Court denied that motion and jury trial began on December
21, 1981. The jury found Wells guilty of aggravated assault,
aggravated burglary, and attempted sexual intercourse without
consent.
Wells presents this Court with five issues on appeal:
1. Whether defendant should have been allowed to
assert an alibi defense within ten days after entering his
plea of not guilty to the amended information, pursuant
to section 46-15-301 ( 2 ) , MCA;
2. Whether defendant was prejudiced by the State's

failure to sequester one witness;
3. Whether comment by a witness that defendant had
been in the State penitentiary constituted reversible error;
 4. Whether conviction of both aggravated burglary and
aggravated assault violates constitutional and statutory

provisions against double jeopardy and multiple punishment;
and,

5. Whether the State's exhibits A, B, D, E, F, and G
were properly authenticated and identified.
I. Alibi Defense
Defendant argues that he should have been allowed to
assert the alibi defense for two reasons. First, he contends

that good cause was shown and that assertion of the defense
would not have surprised the State. Second, he contends
that an amended information is the filing of a new instrument
that supersedes its predecessor. It, therefore, requires a
new arraignment and gives defendant a statutory right to
assert the defenses of alibi, self-defense, or inability to
form the requisite mental state within ten days of the new
arraignment. Finally, he contends that the State should not

have been able to add two witnesses after the denial of the
alibi defense.
Section 46-15-301(2), MCA, provides that a defendant
must assert the defense of alibi within ten days after
arraignment for the purpose of notice only and to prevent
surprise. This statute also allows the defense to be asserted
at "such later time as the court may for good cause permit."
Defendant contends that good cause was shown to allow
him to assert the alibi defense. Defense counsel argued
that he did not become aware that the defense was available until
December 17, 1981. This was some four months after the
crimes had been committed. The alibi that defendant proposed
to assert was the testimony of his mother and a friend that
he had been with them during the 35 minute period in question.
Defense counsel maintained that he had heen unable to contact
them earlier to establish a possible alibi. Further, he
maintained that the defendant had been unable to provide any

information that supported an alibi defense since Wells
claimed he was so intoxicated the night of the crime that he

could not remember where he had been at any given time.
This Court has recognized that the only purpose of
section 46-15-301, PKA, is to prevent surprise and to provide
adequate notice of the alibi defense. State ex rel. Sikora
v. District Court (1969), 154 Mont. 241, 250,462 P.2d 897, 902.
A defendant may upon a showing of good cause assert his
defense of alibi later than the ten day period imposed by
statute. Even during trial a fact situation may be developed
to which an alibi defense may be pertinent or material.
Witsoe v. Nelson (1974), 164 Mont. 511, 512, 524 P.2d 1111.

If such good cause is demonstrated, but the State will be
surprised if the alibi defense is allowed, the appropriate
remedy would be to grant the prosecution a recess or a delay

in the proceedings. State ex rel. Sikora, supra, 154 Mont.
at 251, 462 P.2d at 902.
The standard this Court has applied in determining

whether good cause is shown is whether "substantial reason
that affords a legal excuse" exists for the delay in asserting

an alibi defense. State v. Rozzell (1971), 157 Mont. 443,
450, 486 P.2d 877, 881. Other courts have also considered
the substance of the proposed alibi. State v. Martin (19661,
2 Ariz. App. 510, 410 P.2d 132, 137.

Alibi defenses have been denied where the alibi would
have been provided by family members or friends and it was
not shown that it was not possible to contact them within
the period allowed by statute. United States v. Smith (D.C.
Cir. 1975), 524 F.2d 1288. This Court has upheld denial

of testimony by the defendant's mother as to his whereabouts
during the crime where defendant attempted to have her
testify without notice and without a showing of good cause
for delay. State v. Johnson (1978), 179 Mont. 61, 66-67, 585
P.2d 1328, 1331.

The alibi defense is one readily fabricated. It should
therefore be received with caution and the State shcul6 have
an opportunity to carefully investigate the defense. State
v. Martin, supra, 410 P.2d at 136; State v. Davis (1981), 63
Hawaii 191, 624 P.2d 376, 379; Reese v. State (1979), 95
Nev. 419, 596 P.2d 212, 216. Strict enforcement of the

notice statute will reduce the chance that surprise or
maneuver, rather than the truth, will determine the outcome
of the trial. State v. Davis, supra, 624 P.2d at 379. It
is for these public policy reasons that pretrial discovery
and investigation of the alibi defense are necessary. State

ex rel. Sikora v. District Court, supra, 154 Mont. at 246,
247, 462 P.2d at 900.
The District Court did not abuse its discretion in
denying defendant's request to assert the alibi defense
for good cause. State v. Johnson, supra, 179 Mont. at 67,

585 P.2d at1331. State v. Babella (1978), 177 Mont. 275, ,

279, 581 P.2d 838, 841. The record does not support defendant's
contention that good cause was shown. No explanation was
provided for defendant's inability to locate his mother and
friend in order to establish the defense. Defendant was
specifically reminded of his right to assert the defense at
his August arraignment and was asked at the omnibus hearing

in late November whether he intended to assert it. The
alibi would have had to cover a specific 35 minute period
from 2:00 a.m. to approximately 2:35 a.m. Finally, the
defendant's alibi would have been provided by a relative and
a friend.
Defendant's second argument is that the amended information
is a new document that requires a separate arraignment.
Defendant therefore has a statutory right to assert the
defense of alibi within ten days of the later arraignment.
We agree.
Here, the State moved to amend the information within
two weeks of trial. That amendment required another arraignment.
During the second arraignment defendant was informed, as he
had been at the first, that he was entitled to assert an
alibi defense within ten days. Two days later, he attempted
to do so and was then denied that right. The District Court
erred in denying that statutory right.
In the instant case, this does not amount to prejudicial
error. The amendments to the information were minor and the
charges as amended were founded on the facts set forth in
the original affidavits and information. Defendant was not
surprised or prejudiced by the amendment. Be had specifically
been reminded of his right to assert the alibi defense at
the first arraignment and was asked if he intended to do so
at the omnibus hearing. He informed the court on both
occasions that he would not use it.
Finally, under the facts of the case it is apparent that
the purported alibi defense was frivolous as a matter of law.
Defendant was positively identified by the victim from a
photo lineup based upon her description of the assailant.
He was found outside the residence where the crime had
occurred within minutes of the attack. He was covered with
wet blood later identified as the victim's. He told one
officer that the blood was from a bar fight that had taken
place in Helena and that he had just arrived in Great Falls
by bus. He told another officer that he had been at home, a

block away, during the crime. He commented to the jailer
that "when the blood was matched," he would he going away
for a long time. Denial of the alibi defense was not prejudicial
error.
Nor did the District Court err in allowing the State to

add two witnesses only one working day before trial when it
had denied defendant's alibi defense. The witnesses were

added to testify to a comment made by defendant after the
arraignment at which the assertion of the alibi defense was
denied.
The State demonstrated good cause for adding the witnesses.
It would have been impossible to notify defendant of the
potential witnesses any earlier. Only one of the witnesses
testified and he was the last witness for the State's two
day case. Defendant had ample opportunity to interview
him prior to the short amount of testimony he gave. The
witness' entire statement was only three pages long. See
,
State v. McKenzie (1980), - Mont. - 608 P.2d 428, 441-
442, 37 St.Rep. 325, 335-336; cert.den. 449 U.S. 1050, 101

S.Ct. 626, 66 L.Ed.2d 507. Defendant has failed to demonstrate
prejudice. The addition of unnamed witnesses is within the

~istrictCourt's discretion, section 46-15-301(1), MCA, and

will not be set aside absent a showing of a clear abuse of
that discretion. State v. Booke (1978), 178 Xont. 225, 232,
583 P.2d 405, 409. No abuse has been shown.
11. Sequestered Witness
~efendant'ssecond argument is that he was prejudiced
by the State's failure to exclude one witness from the hearing
room while the trial was in progress. All witnesses had been
p u t under t h e r u l e o f e x c l u s i o n . One w i t n e s s , a p h y s i c i a n ,

was n o t aware of t h e c o u r t ' s o r d e r . He i n a d v e r t e n t l y came

i n t o t h e courtroom and s a t down a few m i n u t e s b e f o r e he w a s

t o testify. Defendant immediately b r o u g h t i t t o t h e D i s t r i c t

C o u r t ' s a t t e n t i o n t h a t t h e d o c t o r had a p p a r e n t l y been i n t h e

courtroom i n d i s r e g a r d of t h e e x c l u s i o n o r d e r .

I t d o e s n o t a p p e a r from t h e r e c o r d t h a t t h e d o c t o r was

aware of t h e r e s t r i c t i o n . Nor w e r e t h e p r o s e c u t o r s aware of

h i s presence. F i n a l l y , t h e t e s t i m o n y of t h e p r e v i o u s w i t n e s s

r e l a t e d t o t h e p r o c e d u r e used i n t a k i n g and s t o r i n g blood

samples. The p h y s i c i a n ' s t e s t i m o n y went t o t h e v i c t i m ' s

injuries .
T h i s C o u r t h a s h e l d t h a t where no p r e j u d i c e i s shown,

i t i s n o t e r r o r t o admit t h e t e s t i m o n y of a n u n s e q u e s t e r e d

witness. S t a t e v. Radi ( 1 9 7 8 ) , 176 Mont. 451, 460-461, 578

P.2d 1169, 1176. S t a t e v. Love ( 1 9 6 8 ) , 1 5 1 Mont. 190, 195,

4 4 0 P.2d 275, 278. A p a r t y s h ~ u l d o t be d e n i e d h i s w i t n e s s
n

b e c a u s e o f misconduct which t h e p a r t y h a s n o t c a u s e d . State

v. Johnson ( 1 9 2 2 ) , 62 Mont. 503, 510, 205 P . 661, 663.

"Refusal t o permit a witness t o t e s t i f y i n a
c r i m i n a l c a s e on t h e ground t h a t he had v i o l a t e d
t h e o r d e r excluding witnesses i s r e v e r s i b l e e r r o r
where n e i t h e r t h e s t a t e n o r t h e d e f e n d a n t was
r e s p o n s i b l e f o r t h e v i o l a t i o n of t h e o r d e r and
d i d n o t know he was p r e s e n t . " (Citation omitted.)
S t a t e v. Johnson, 62 Mont. a t 511, 205 P. a t 653.

Excluding t e s t i m o n y i s n o t an a p p r o p r i a t e remedy. Rather,

t h e j u r y s h o u l d be i n s t r u c t e d on t h e c r e d i b i l i t y o f t h e

witness. I f the order is willfully violated, the court

may p r o p e r l y h o l d t h e w i t n e s s i n contempt o f c o u r t . Johnson,

6 2 Mont. a t 512, 205 P.2d a t 663.

I n t h e c a s e b e f o r e t h i s C o u r t , t h e w i t n e s s was unaware

of t h e order. Neither t h e S t a t e nor t h e defendant noted

h i s p r e s e n c e u n t i l he had been i n t h e courtroom f o r s e v e r a l
minutes. The t e s t i m o n y he h e a r d was t o t a l l y u n r e l a t e d t o

t h a t which h e w a s g i v i n g . Defendant h a s f a i l e d t o d e m o n s t r a t e

prejudice.

111. Evidence o f Other C r i m e s

Defendant n e x t a r g u e s t h a t a m i s t r i a l s h o u l d have been

g r a n t e d when a w i t n e s s made r e f e r e n c e t o t h e f a c t t h a t

d e f e n d a n t had been i n t h e s t a t e p e n i t e n t i a r y . He c o n t e n d s

t h a t t h i s statement s o t a i n t e d t h e jury with regard t o

t h e d e f e n d a n t ' s c h a r a c t e r t h a t he was d e n i e d a f a i r t r i a l .

The Montana Rules o f Evidence, Rule 4 0 4 ( b ) , p r o h i b i t s

a d m i s s i o n o f e v i d e n c e o f o t h e r c r i m e s , wrongs, o r a c t s i n

o r d e r t o p r o v e t h e c h a r a c t e r o f t h e d e f e n d a n t and t o show

t h a t h e was a c t i n g i n c o n f o r m i t y w i t h t h a t c h a r a c t e r . Such

evidence i s admissible f o r o t h e r purposes, such a s e s t a b l i s h i n g

motive, o p p o r t u n i t y , i n t e n t , p r e p a r a t i o n , p l a n , knowledge,

i d e n t i t y , o r a b s e n c e o f m i s t a k e o r a c c i d e n t . Rule 403 e x c l u d e s

o t h e r w i s e r e l e v a n t e v i d e n c e i f i t s p r o b a t i v e v a l u e i s outweighed

by t h e d a n g e r of p r e j u d i c e . Rule 403, Mont.R.Evid. This

C o u r t e s t a b l i s h e d a four-pronged t e s t based upon t h e above

two r u l e s of e v i d e n c e . The t e s t i s t o be a p p l i e d t o d e t e r m i n e

whether e v i d e n c e o f o t h e r c r i m e s may be a d m i t t e d . The f o u r

factors are:

" (1) s i m i l a r i t y o f crimes o r a c t s ;

" (2) nearness i n t i m e ;

" ( 3 ) tendency t o e s t a b l i s h a common scheme,
p l a n o r system; and

"(4) t h e p r o b a t i v e v a l u e of t h e e v i d e n c e
i s n o t s u b s t a n t i a l l y outweighed by t h e
prejudice t o t h e defendant." S t a t e v.
. ,
J u s t ( 1 9 7 9 ) , - Mont - 602 P.2d 957,
961, 36 St.Rep. 1649, 1653. See a l s o S t a t e v.
Case (19801, Mont . , 621 P.2d 1066,
1070-1071, 3 7 X . R e p . 2 0 5 7 , 2062.

The b a s i s f o r t h i s r u l e i s t h a t a d e f e n d a n t i s e n t i t l e d

t o be informed o f t h e o f f e n s e c h a r g e d s o t h a t he may p r e p a r e
a defense only to that particular offense. State v. Lave
(1977), 174 Mont. 401, 406, 571 P.2d 97, 100. He should not

be subjected to surprise.
In this instance, a detective called by the State was
questioned concerning a conversation he had with defendant.
When asked what the defendant said to him, the detective

replied:
"He began to talk to me, and I asked him
if he was aware of his rights, and he
stated that he had been in the state
penitentiary and he was well aware of his
rights. "
The statement that defendant had been in the state
penitentiary was not responsive to the question posed by the
prosecutor.
When the statement was made at trial here, defendant
objected and asked that it be stricken from the record. The
objection was sustained. Defendant then, during a hearing
in chambers, moved for a mistrial. That motion was denied
and the court later gave the jury a general instruction

to ignore evidence that was rejected or stricken, to not

speculate on objections or what answers might have been, and
to not assume insinuations suggested by a question to be
true.
In a criminal case, if prejudice is alleged, it will

not be presumed but must be established from the record that
a substantial right was denied. State v. Dupre (1982), -
Mont. , 650 P.2d 1381, 1386, 39 St.Rep. 1660, 1666. See
also section 46-20-701, .MCA. The test that this Court has
adopted in determining whether the prejudicial error requires
a reversal is whether there is a reasonable possibility that
the inadmissible evidence might have contributed to the

conviction. State v. Lave, supra, 174 Mont. at 407, 571
P.2d at 102; See also Chapman v. California (1967), 386 U.S.
18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710; Kotteakos v.

United States (19461, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248,
90 L.Ed. 1557, 1566-1567.

Defendant has not demonstrated that the detective's
comment denied a substantial right. Nor has he shown that
the one reference that he was "in the state penitentiary"
might have contributed to his conviction in the instant
case in the face of the overwhelming evidence introduced that
directly proved defendant guilty of the offenses charged.
This argument fails.
IV. Double Jeopardy/Multiple Convictions
Defendant next contends that constitutional and statutory
provisions against double jeopardy were violated when he
was convicted of both aggravated burglary and aggravated

assault. He argues, first, that under the facts of this
case the aggravated assault charge was completely merged

with the aggravated burglary, and, second, that one fact--
the use of a knife--provided the aggravating circumstance

raising both the burglary to aggravated burglary and the
assault to aggravated assault. These contentions fail.
The double jeopardy prohibition contained in the Fifth
Amendment to the United States Constitution has been applied
to state proceedings since 1969. Benton v. Maryland (1969),

395 U.S. 784, 796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 717.
This prohibition protects a defendant from both multiple
prosecutions for offenses arising out of the same transaction
and from multiple punishments imposed at a single prosecution
for the same offense. See North Carolina v. Pearce (1969),

395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665.
Where, as here, defendant was tried at a single prosecution
for all of the statutory crimes in question, the issue is
one of multiple punishments. State v. Close (1981),

Mont . - 623 P.2d 940, 949, 38 St.Rep. 177, 185.
,
The analysis that this Court has consistently applied
in determining whether one offense is included within another
offense is the test set forth in Blockburger v. United
States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76
L.Ed. 306, 309. In Blockburger, the Court ruled:

"The applicable rule is that where the same
act or transaction constitutes a violation
of two distinct statutory provisions, the
test to be applied to determine whether
there are two offenses or only one, is whether
each provision requires proof of a fact which
the other does not." 284 U.S. at 304, 52
S.Ct. at 182, 76 L.Ed. at 309.
The Blockburger test is codified in section 46-11-502,

MCA .
This Court has adopted the approach whereby the
analysis is applied to the statutes in question rather
than to the facts of the individual case. State v.

,
Ritchson (1981), - Mont. - 630 P.2d 234, 237, 38 St.Rep.
1015, 1018. In determining whether multiple punishments should
be allowed for offenses arising out of the same transaction,

the dispositive question then becomes whether the legislature
intended to provide for multiple punishments. State v.
Close (1981), supra, 623 P.2d at 949, 38 St.Rep. at 188.
"Blockburger's analysis must stand or fall on the working of
the statutes alone, not on the indictment." Close, 623 P.2d
at 950, 38 St.Rep. at 189. See also, State v. Buckman

,
(1981)I - Mont. - 630 P.2d 743, 745, 38 St.Rep. 1007,
1009; State v. Coleman (1979), Mont. , 605 P.2d
1000, 1008-1009, 36 St.Rep. 1134, 1138-1140A; State v.
Perry (1979), 180 Mont. 364, 368, 590 P.2d 1129, 1131; State
v. Davis & Close (1978), 176 Mont. 196, 199, 577 P.2d 375,
377; State v. Radi, supra, 176 Mont. at 462, 578 P.2d at 1176.
There are several bases for concluding that the legislature
intended to permit punishment for both aggravated burglary

and the related felony of aggravated assault.
First, in applying the Blockburger analysis to the
statutes involved, we do not conclude that the offense of

aggravated assault is the same offense as aggravated burglary.
It is clear that one can commit aggravated burglary without

committing aggravated assault and that one can corrmit aggravated
assault without corrmitting aggravated burglary.
Second, Montana case law interpreting the State's
burglary statutes has consist~ntlydistinguished the crime
of burglary from any other offense that the burglar intends
to commit and has allowed prosecution for both. The essential
elements of burglary have always been the wrongful presence
of the burglar with an intent to commit another offense. It
is not necessary to denonstrate that the related offense was
in fact committed where the intent to cormit it is shown.
This Court has always observed that difference:
"As early as Territory v. Willard, 8 Mont.
328, 331, 332, 21 P. 301, 302, this court
noted the distinctions between burglary
and larceny, stating: 'It is plain from
the definitions that they [burglary and
larceny] are two distinct crimes, and
the larceny is not necessarily included in
the burglary. In order to sustain the
indictment for burglary it would only be
essential to prove the felonious entry with
the intent, while to convict on the charge
of larceny, it becomes necessary to s h ~ w
the taking, for the entry may have been
without any felonious intent. Burglary,
on the other hand, may, as it frequently
does, exist without actual theft, and larceny
may be committed without burglary. Therefore,
in making out the case of larceny, the
prosecution need not have shown any burglarious
intent or entering; it became only necessary
to prove the usual elements of theft,--that
is, the venue, the identity of the accused,
 the felonious taking, the intent to convert
to the taker's use, the property stolen, its
value, the ownership, and that the offense
occurred within the time lircited for such
prosecutions * * *.' The various decisions of
this court since the Willard case, supra, have
not materially departed from this explanation
of the two crimes." Morigeau v. State of
Montana & Ed Ellsworth (1967), 149 Mont. 85, 89,
423 P.2d 60, 62.

Since burglary is based upon the wrongful entry or
remaining with the requisite intent to commit an offense,
the burglary occurs at the time of unlawful entrance upon
the premises. State v. Solis (1973), 163 Mont. 293, 295,
516 p.2d 1157, 1158. See also State v. Harris (19721, 159

Mont. 425, 430, 498 P.2d 1222, 1225; State v. Moran (1963),

142 Mont. 423, 384 P.2d 777. The intent and the entry are
determinative.
". . . In Perkins on Criminal Law, p. 166
(1957), the author states:

"'Larceny is usually the purpose for which
burglary is committed but it is not essential
to guilt that the intruder succeed in carrying
out the intent with which the house was broken
into, nor that it should be for the purpose
of stealing. There is nc comon-law burglary,
however, unless the intrusion is perpetrated
with an intent to c o m i t sorce felony. Thus
if a rogue breaks into the dwelling of another
at night with intent to commit murder he is
guilty of burglary even if he leaves without
finding his intended victim and without having
committed any felony in the house. On the
other hand he would not be guilty of burglary
if he brcke in for the purpose of trespass
only even if he subsequently did commit sone
felony during his wrongful visit.'" State v.
Austad (1975), 166 Mont. 425, 428, 533 P.2d
1069, 1070.
The third basis for finding that the legislature intended
multiple punishments is its adoption of the Montana Criminal
Code of 1973 and its subsequent amendment of the burglary
statutes. The 1975 revision added "unlawfully" after the
requirement that a burglar "knowingly enters or remains . . ."
This change reflects a clear intention to return to the
common law view that "the gravamen of burglary was the
threat to person resulting from the wrongful intrusion" into
someone's occupied structure. Annotations, section 45-6-
204, MCA, at 200. State v. Shannon (1976), 171 Mont. 25, 27,
554 P.2d 743, 744.
By contrast, the crime of aggravated assault deals with
the more serious forms of assault. The crime of battery is
merged with the assault provision and in all but subsection
(1)(c) of the aggravated assault statute an actual physical
contact or battery is required. Subsection (l)(c) requires
reasonable apprehension of serious bodily injury caused by
use of a weapon. Annotation, section 45-5-202, MCA, at 146.
The focus of the aggravated assault statute is on the
victim and the actual injury to him or his reasonable
apprehension of serious bodily injury caused by use of a
weapon. While the crux of the burglary statute is to prevent
the threat to a person resulting from the unlawful intrusion
into his property, it is not necessary that a burglary
victim be harmed in any way or that the victim even be aware
of the threat to his person from the unlawful intrusion.
The legislature unmistakably intended multiple punishments
for the offenses of aggravated burglary and aggravated
assault. If a person enters or remains unlawfully in an
occupied structure with the intent to commit an aggravated
assault, he has committed a burglary. If he then commits the
aggravated assault, he may be convicted of it and sentenced
for it in addition to conviction and sentencing for the
burglary.
Defendant's second argument, that he was placed in
double jeopardy since the use of a knife was the one aggravating

circumstance raising both crimes to the aggravated level, is
without merit. Again, the Blockburger analysis as applied

to the statutes will not result in a finding of double
jeopardy. In addition, under the facts of the instant case

there is still no possibility that the use of the knife

raised both crimes to the aggravated level.
Defendant was charged with aggravated assault under
sbeto()b
uscirl() of 45-5-202, MCA. The jury was instructed
to find him guilty of aggravated assault if it found that he
had purposely or knowingly caused bodily injury to the
victim with a weapon. The factor raising the crime from

simple assault (purposely or knowingly causing bodily injury
to another) to aggravated assault was the use of a weapon--
the knife.
The aggravating factors raising the burglary to aggravated
burglary were two-fold. The elements of simple burglary are
that a person enter or remain unlawfully in an occupied
structure with the purpose to commit an offense therein.
Aggravated burglary requires (1) the defendant's intent that
the offense be a felony and, (2) that in effecting entry,

committing the offense or in flight thereafter, the defendant
purposely, knowingly, or negligently inflicts or attempts
to inflict bodily injury upon another. Section 45-6-204 (2)
(b), ECA. Here, the jury was instructed that in order to
find defendant guilty of aggravated burglary, it would have
to find: that he entered or remained unlawfully in the
occupied structure, with the purpose to commit aggravated
assault, and that in the course of committing the offense he
purposely, knowingly, or negligently inflicted bodily injury
upon anyone.
The aggravating factor for assault was use of the

weapon. The aggravating factors for the burglary were that
the offense was a felony and that defendant purposely,
knowingly, or negligently inflicted bodily injury upon
anyone. There was ample evidence presented to the jury to
support conviction for aggravated assault (bodily injury

with the knife) and a conviction for aggravated burglary (an
intent to commit aggravated assault and bodily injury resulting

from choking the victim or hitting her on the head). The jury
instructions given on aggravated burglary allowed an independent

conviction for the burglary without a conviction for aggravated
assault. The jury could have convicted defendant of aggravated
burglary if it found that the State proved intent to commit
the felony (aggravated assault). The jury could have found
the related aggravated assault if it found that defendant
placed the victim in serious apprehension of bodily injury
with a weapon by holding a knife in front of her face.
Finally, the jury could have found that defendant committed
the underlying aggravated assault by inflicting serious

bodily injury upon the victim. The attending physicians
testified that Terry received life threatening wounds.
Defendant was not placed in double jeopardy.

V. Chain of Custody

Defendant challenges the chain of custody of exhibits
r'AtlI
"B", "D", and " E n and contends that testimony as to

those exhibits and exhibits "F" and "G" should have been
stricken. He asserts that the chain of custody was not
foolproof and that the evidence was therefore inadmissible.
It is not necessary for the State to prove that it would
be impossible to tamper with the exhibits. State v. Nelson

(1978), 178 Mont. 280, 288, 583 P.2d 435, 439; State v.
Fitzpatrick (1973), 163 Mont. 220, 230, 516 P.2d 605, 611-612.
R a t h e r , t h e S t a t e need o n l y make a prima f a c i e showing t h a t

t h e r e h a s been no s u b s t a n t i a l change i n t h e e v i d e n c e . State

v. Wong Fong ( 1 9 2 5 ) , 75 Mont. 8 1 , 87, 2 4 1 P . 1072, 1 0 7 4 .

A f t e r s u c h a showing, t h e burden o f proof s h i f t s t o t h e

d e f e n d a n t t o show w h y s t h e e v i d e n c e s h o u l d n o t be a d m i t t e d .

S t a t e v. Armstrong ( 1 9 8 0 ) , -- ,
Mont. - 616 P.2d 341, 355,

37 St.Rep. 1563, 1579. Adequacy o f t h e f o u n d a t i o n f o r t h e

a d m i s s i o n o f e v i d e n c e i s w i t h i n t h e d i s c r e t i o n of t h e D i s t r i c t

C o u r t and i t s d e t e r m i n a t i o n o f adequacy w i l l n o t be o v e r t u r n e d

a b s e n t a c l e a r a b u s e of d i s c r e t i o n . S t a t e v. Thomas (19751,

166 Mont. 265, 268-269, 532 P.2d 405, 407.

E x h i b i t s "A", "B", "D" and "E" w e r e p r o p e r l y a d m i t t e d .

Each e x h i b i t ( c o r d u r o y p a n t s , a t - s h i r t , a s h e e t , and a

p i l l o w c a s e ) were i d e n t i f i e d by t h r e e o r f o u r p o l i c e o f f i c e r s .

The i t e m s were e a c h d e s c r i b e d i n d e t a i l and i d e n t i f i e d by

c o l o r , by p a r t i c u l a r p a t t e r n s of blood s p o t s , and by d e s i g n s .

I n e a c h i n s t a n c e , t h e o f f i c e r s t e s t i f i e d t h a t t h e i t e m s were

i n s u b s t a n t i a l l y t h e same c o n d i t i o n a s on t h e n i g h t o f t h e

crime. Extensive testimony described t h e l a b e l i n g , s t o r i n g ,

and t e s t i n g p r o c e d u r e s used f o r e a c h i t e m . Defendant h a s

r a i s e d no p o s s i b i l i t y o f a c t u a l tampering. The e x h i b i t s

w e r e properly admitted.

Defendant a l s o a r g u e s t h a t t e s t i m o n y i n r e f e r e n c e t o

e x h i b i t s "F" and "G" s h o u l d be s t r i c k e n from t h e r e c o r d .

These e x h i b i t s w e r e v i a l s o f blood t a k e n from t h e v i c t i m and

from d e f e n d a n t f o r u s e i n blood t y p i n g t e s t s run on o t h e r

exhibits. Extensive testimony w a s presented t h a t chronicled

t h e c h a i n of c u s t o d y from t h e t a k i n g of t h e samples, s t o r a g e

and d e l i v e r y t o t h e S t a t e C r i m e L a b o r a t o r y i n M i s s o u l a ;

s t o r a g e and t e s t i n g t h e r e ; t h e i r r e t u r n t o G r e a t F a l l s ; and
storage until trial. Expert testimony on the results and

conclusions of the blood tests was also given. It established
that the b l ~ o dcovering defendant when he was apprehended was
that of the victim.
At no point during trial did defendant object to this
testimony. He may not now on appeal raise this issue for

the first time. State v. Campbell (1981), - Mont . -I

622 P.2d 200, 202, 38 St.Rep. 19, 22. The testimony was
properly allowed. The exhibits were properly admitted.
Af firmed.

We Concur:
Mr. Justice Daniel J. Shea, dissmting:

The sentences imposed for two of the three convictions fly in
the face of the double jeopardy provisions of our state and federal
constitutions. Defendant has been sentenced three times for
inflicting bodily injury on Terry W; this has not only subjected him
to double jeopardy, it has subjected him to triple jeopardy.
Defendant was sentenced to a tot21 of 150 years in prison--the
sentences to be served consecutively. For the conviction of Count
I, aggravated assault, he was sentenced to the statutory maximum--20
years in prison. For the conviction of Count 11, aggravated
attempted sexual intercourse without consent, he was sentenced to
the statutory maximum--40 years in prison. For the conviction of
Count 111, aggravated burglary, he was sentenced to the statutory
maximum--40 years in prison. In addition, he was sentenced to 50
more years i prison because the court found him to be a persistent
n
felony offender.
The 40 year sentence imposed for the Count 11, aggravated
attempted sexual intercourse without consent conviction is

unconstitutional, and the 40 year sentence imposed for the Count
111, aggravated burglary conviction is unconstitutional.
The vital double jeopardy questions i this case have bem
n
missed by the defendant, by the State, and by the majority. The
question is not the narrow one of whether the aggravated assault
charge or conviction is merged in the aggravated burglary charge or
conviction--although I believe the defendant has a good argument on
this point. Rather, the questior! is whether it is constitutionally
permissible to punish the defendant three times for inflicting
bodily injury on Terry W.
Each of the three convictions are based on an essential finding
that defendant inflicted bodily injury on Terry, and, more important
t t h i s case, each of the sentences imposed are necessarily based on
o
t h i s e s s e n t i a l finding. How many times can a defendant be punished

f o r i n f l i c t i n g the same bodily injury?

Following is a s w of how t h e sentences operated to impose
double jeopardy and even t r i p l e jeopardy f o r the inflicti-on of

bodily injury.

Count 1. Aggravated a s s a u l t carries a maximum sentence of 20

years in prison. To convict defendant of aggravated a s s a u l t the

jury was required t o find a s an e s s e n t i a l f a c t t h a t defendant

i n f l i c t e d bodily injury on Terry W. Defendant was convicted; and

defendant was given the maximum prison sentence--20 years. He

therefore was punished f o r i n f l i c t i n g bodily injury on Terry W.

Count 2. A conviction of attempted sexual intercourse without

consent could r e s u l t i n a maximum prison sentence of 20 years.

Hmever, a conviction of aggravated attempted s p m a l intercourse

without consent, could r e s u l t i n a maximum prison sentence of 40

years. To convict defendant of aggravated attempted sexual

intercourse without consent the jury was required t o find a s an

e s s e n t i a l f a c t t h a t defendant i n f l i c t e d bodily injury on Terry W.

Defendant w s convicted--and defendant w s given the maximum prison
a a

sentence--40 years. H e therefore was punished f o r i n f l i c t i n g bodily

injury on Terry W. Because he was already punished i n Count I f o r

i n f l i c t i n g bodily injury on Terry W, the additional 20 years

constituted double jeopardy.

Count 3 . A conviction of burglary c a r r i e s a maximum prison

sentence of 10 years. Hawever, a. conviction of aggravated burglary

can r e s u l t i n a maximum prison sentence of 40 years. To convict

defendant of aggravated burglary the jury w s required t o find a s an
a

essential fact that he i n f l i c t e d bodily injury on Terry W.

Defendant was convicted of aggravated burglary--and he was given t h e

m i m u m prison sentence--40 years. H e therefore was punished f o r
inflicting bodily injury on Terry W. However, he was already
punished in Counts I and I1 for inflicting bodily injury on Terry W.
This sentence goes a step beyond the constitutional prohibition of
double jeopardy: it constitutes triple jeopardy.
I next proceed with an analysis of the three convictions and
sentences:

I. THE AGGRAVATED ASSAULT STATUTES AND THE COUNT I AGGRAVATED
ASSAULT CONVICTION IN FELATION TO INFLICTION OF BODILY INJURY.
The felony assault statute (section 45-5-202, MCA, aggravated
assault) and the misdemeanor assault statute (section 45-2-201, MCA,
assault) are primarily directed at conduct resulting in an actual
battery. (Each statute, however, has one exception not involved
here in which an actual battery need not be inflicted to camplete
the crime.) The statutes focus on the severity of the injury and on
whether a weapon was used.
Infliction of serious bodily injury, regardless of whether a
weapon was used, can constitute an aggravated assault. Section
45-5-202(1) (a), MCA. Gn the other hand, if a weapon is used,
infliction of bodily injury (as opposed to serious bodily injury) is
sufficient to constitute an aggravated assault. Section
45-5-202 (1)(b), MCA. However, if only bodily injury is inflicted,
but no weapon is used, it constitutes only a misdemeanor. Section
45-5-201(1)(a), 0.

Count I charged aggravated assault by alleging that defendant
". . . purposely or knowingly caused bodily injury to Terry W. with
a weapon, a knife, by stabbing Terry six times in the back. " By
this charge the State was required to prove not only that a weapon
(knife) was used, but also that Terry W. sustained bodily
injury--both essential elants of the c r k of aggravated assault
as charged under section 45-5-202 (1)(b), MCA.
 The jury was instructed on the definition of assault

(instruction 1 2 ) and jury instruction 13 told the jury what must be

proved :

"To sustain the charge of aggravated assault the
State must prove the following proposition:
That the defendant purposely o r knowingly caused
bodily injury t o Terry W. with a weapon. "
( Q h a s i s added.)

This instruction, although phrased as one "proposition," actually

contains three essential elements: (1) That defendant acted

purposely o r knowingly; (2) -- inflicted bodily injury; and ( 3 )
that he

that he used a weapon.

The jury convicted defendant and. by so doing it necessaril-y

found a l l essential e l m t s - - i n c l u d i n g the finding that defendant

inflicted bodily injury. Without the essential finding t h a t

defendant inflicted W i l y injury, the jury could not have convicted.

him of the charge. A conviction of aggravated assault carries a

prison sentence of "not l e s s than 2 years nor more than 20 years."

Section 45-5-202 ( 2 ) , MCA. Defendant was sentenced to the

maximum--20 years i n prison. This sentence clearly punished

defendant for i n f l i c t i n g bodily injury, an essential element of the

offense.

The t r i a l court was clearly authorized t o sentence defendant t o

the maximum 20 years i n prison for t h i s offense, and no double

jeopardy problem arises because of t h i s sentence alone. A double

(and t r i p l e ) jeopardy problem does arise, however, beca-use of the

sentences imposed for the conviction of Count I1 and Count 1 1 each
1 ,

of which required, i n order for the sentence t o be increased, an
essential finding t h a t defendant inflicted bodily injury.

1 .
1 THE SEXUAL l3lEIiCOURSE WITHOUT CONSENT S A U E AND
T T TS THE COUNT
1 CONVICTION
1 I F3lATION TO INFLICTION OF BODILY INJURY.
N
I f i r s t en-phasize t h a t defendant has raised no issue concerning

the Count I1 conviction or the 40 year sentence irtpsed. because of
the finding of m aggravating factor--the infliction of bodily

injury. However, h i s constitutional rights have been affected and

we cannot ignore them and claim t o do justice as an appellate court.

The Count I1 charge requires application of three statutes:

first, the s t a t u t e defining sexua.1 intercourse without consent;

second, the subsection of t h i s s t a t u t e permitting an increased

sentence i f an aggravating factor surrounding the c d s s i o n of the

crime is found t o exist; and third, the general attempt s t a t u t e

which provides t h a t it i s a crime t o attempt a c r k , and which

further provides t h a t the penalty upon a conviction i s the same a s

though the offense had been ccanpleted.

The sexual intercourse without consent statute, section

45-5-503(1), M X , defines the crime as: "Any person who knowingly

has sexual intercourse without consent with a person of the opposite

sex not h i s spouse consnits the offense of sexua.1 intercourse without

consent." Subsection (2) of this s t a t u t e provides t h a t one

convicted of the crime "shall be imprisoned i n the s t a t e prison f o r

a term of not l e s s than 2 years or more than 20 years." However,

under subsection (3) of t h i s statute, i f an aggravating factor is

found t o e x i s t together with proof of the crime i t s e l f , the maximum

sentence can be increased t o 40 years i n prison. Subsection 3

provides :

"If the victim i s l e s s than 1 6 years old and the
offender is 3 o r more years older than the
victim o r -- offender -in£l i c t s bodily injury
i f the
upon anyone i n the course of corranitting sexual
intercourse without consent, he s h a l l be
imprisoned i n the sta.te prison for any term of
not less than 2 years or m r e than 40 years
. . ." (Emphasis added.) Section 45-5-503 (3) ,
IvKlA. (See Appendix A t o t h i s dissent for a
discussion of t h i s aggravating factor.)

11. A m SEXUAL INTEXCOURSE WITHOUT CONSENT.

And now to the attempt statute. Section 45-4-103(1), J93,

defines an attempt, and subsection ( 3 ) of this s t a t u t e provides the
penalty: " person convicted of the offense of attempt shall be
A

punished not t o exceed the mimum provided for the offense

a.ttempted." Applied here, this means t h a t a conviction of attempted

sexual intercourse without consent could r e s u l t i n a prison sentence

of 20 years--the maximum penalty for the crime of sexual intercourse

without consent.

However, although the State alleqed the charge a s attempted

sexual intercourse without consent, the actual charge w s t h a t of
a

aggravated attempted sexual intercourse without consent. In

addition t o charging the e l a n t s of an attempt t o c d t the crime,

the State charged t h a t defendant inflicted bodily injury upon Terry

W. The allegation in the charge t h a t "the victim suffered bodily
-
injury" became the fourth essential f a c t the State was required t o

prove. Jury instruction 18 set forth the essential e l m t s of the

offense :

To sustain a charge of Attempt (Sexual Intercourse
Without Consent), the State mst prove the following
propositions:

"First: t h a t the defendant, w i t h the purpose t o commit
sexual intercourse without consent, performed any a c t
toward the c&ssion of the offense of sexual
intercourse w i t h Terry W.; and

"Second: t h a t Terry W was not the defendant' s spouse;
and

"Third: t h a t the attempted act of sexual intercourse
was without the consent of Terry W; and

"Fourth: that the defendant, while attempting t o c&t
sexual intercourse without consent, inflicted bodily
i njury on any persons. I' (-hasis added. )

This same instruction also told the jury t o find defendant guilty i f

it found a l l four elements t o e x i s t beyond a reasonable doubt, but

t o find him not guilty i f it found any of those four elements was

not proved beyond a reasonabl-e doubt.

Whether infliction of bodily injury is an essential element of

the offense (I do not think it i s ) , o r whether it is only an
aggravating factor the proof of which triggers the potential
imposition of a 40 year prison sentence, the fact is that the jury
was instructed that infliction of bodily injury is an essential
e l m t of the offense. Based on jury instruction 18, supra, the
jury could not have found defendant guilty of the attempt unless it
also found that he inflicted bodily injury.
Furthemre, i the context of
n the maximum permissible
sentence, it makes no difference whether infliction of bodily injury
is an essential element of the offense or whether it is simply the
aggravating factor, the proof of which can trigger a higher maximum
sentence. The result is the same: in each situation, infliction of
bodily injury is the basis on which the higher sentence can be
imposed.
A double jeopardy violation could have been avoided here if the
trial court sentenced defendant to a maximum 20 years in prison.
This is so because the maximum sentence permitted for a conviction
of sexual intercourse without consent (section 45-5-503( 2 ) , MCA) or
for conviction of an attempt (section 45-4-103 (3), K A ) is 20 years.
But any sentence beyond 20 years violates the double jeopardy
clauses because it must of necessity rely on an underlying finding
that defendant inflicted bodily jury. Because a finding of
infliction of bodily injury was essential to the conviction of Count
I, aggravated assault, it could not once again be used as the basis

for an increased sentence because of a conviction of aggravated
attempted sexual intercourse without consent. Once is
permissible--twice is double jeopardy.
The remedy for this Count I1 conviction is not to reverse the
conviction, but simply to remand for resentencing, with instructions
that any sentence beyond 20 years is constitutionally impermissible
as constituting double jeopardy.
11
1. THE BURGLARY AND AGGRAVATED B R J R S A U E AND THE COUNT I11
U GA Y T T T

AGGRAVATED Y
-
B CONVICTION I N FEXATION TO INF'LICTION OF BODILY

The sentence imposed for the Count 1 1 aggravated burglary
1 ,

conviction, has resulted i n a double ( t r i p l e ) jeopardy violation.

Burglary carries a maximm sentence of 10 years in prison.

Aggravated burglary carries a maximum sentence of 40 years i n

prison. The essential finding raising the c r k from burglary to

that of aggravated burglary, w s t h a t defendant inflicted bodily
a

injury on Terry W. The 40 year prison sentence punished defendant a

third time for i n f l i c t i n g bodily injury--a clear double ( t r i p l e )

jeopardy violation.

Section 45-6-204, MCA, defines burglary @ aggravated

burglary. Subsection (1)defines burglary:

"A person c&ts the offense of burglary i f he
knowingly enters o r remains unlawfully in an occupied
structure with the purpose t o commit an offense
therein. "

Aggravated burglary i s defined by subsection (2) of the

burglary statute. I t provides:

" person c&ts
A the offense of aggravated burglary i f
he knowingly enters o r remains unlawfully i n an occupied
structure with the p u r p s e t o commit a felony therein
and :

" ( a ) In effecting entry o r i n the course of c d t t i n g
the offense o r in h w d i a t e f l i g h t thereafter, he o r
another participant i n the offense is armed w i t h
explosives o r a weapon; -
or

" (b) In effecting entry o r in the course of c d t t i n g
the offense o r i n an irranediate f l i g h t thereafter, -
he
sely, knowingly, o r negligently i n f l i c t s o r
: e t o pls GFiily injury upon anyone?
z mi n f i c t t
(Emphasis added. ) (See Appendix B to t h i s dissent. )

The penalty for burglary and aggravated burglary is provided by

section 45-6-204 (3) , MCA. It provides :

" person convicted of the offense of burglary shall be
A
imprisoned in the state prison for any term not t o
exceed 1 0 years. A person convicted of the offense of
 aggravated burglary shall be i q r i s o n e d in the s t a t e
prison for any term not t o exceed 40 years."

The charge alleged the elertmts of burglary but added as the

f i n a l el.ement, the allegation that defendant c a d t t e d aggravated

burglary. The State alleged that defendant entered an occupied

structure ". . . w i t h the purpose t o c&t a felony therein,

aggravated assault, and i n the course of c&tting the offense, he

purposely, knowingly o r negligently inflicted bodily injury upon

Terry W." Proof t h a t defendant inflicted bodily injury is the

essential f a c t which changed the crine from one of burglary t o one

of aggravated burglary. (See Appendix B t o t h i s dissent.)

The jury was instructed that infliction of bodily injury was an

essential element of the charge of aggravated burglary. Jury

instruction 22 defined aggravated burglary:

"A person cormits the offense of aggravated burglary who
knowingly enters or remains unlawfully i n an occupied
structure with the purpose t o cortunit a felony therein,
and in the course of c h t t i n g the offense he
purposely, knowingly, o r negligently inflicted bodily
injury upon anyone." (Emphasis added.)

And jury instruction 23 s e t forth the elements which the State

was required t o prove for the charge of aggravated burglary:

To sustain the charge of aggravated burglary, the State
must prove the following propositions:

"First: That the defendant knowingly entered or
remained unlawfully within an occupied structure;

"Second: That the defendant did so with the purpose t o
c o k t aggravated assault a felony, therein; and

"Third: That in the course of cormnittincr the offense
J

t h y d e f e n d a n t purposely, knowingly - negligently
or
inflicted bodily injury upon anyone. 'I (See Appmdix B
t o t h i s dissent. )

This instruction also told the jury t h a t it must convict i f it found

a l l three elements t o be proved beyond a reasonable doubt, and t h a t

it must acquit i f it found any one of the e l m t s not proved beyond

a reasonable doubt.
 The aggravated burglary charge presented t o the jury an a l l o r

nothing situation. That is, the jury was not given the option of

convicting defendant of aggravated burglary o r burglary--burglary

being i n essence a lesser-included offense. Rather, the jury w s t o
a
decide only whether defendant was guilty o r innocent of the charge

of aggravated burglary.

In finding defendant guilty of aggravated burglary, the jury

necessarily found t h a t defendant inflicted W i l y injury on Terry

W--the essential f a c t which raised the crime from t h a t of burglary

t o t h a t of aggravated burglary. (See the third element of

instruction 23, supra.) This finding, however, served yet another

function insofar as sentencing is concerned.. It raised the

permissible sentence from 10 years ( t h a t permitted for a conviction

of plain burglary) t o 40 years (that permitted for a conviction of

aggravated burglary) .
In s e n t ~ ~ c i n defendant
g to 40 years in prison for the

conviction of aggravated burglary, the court necessarily relied on

the jury's finding t h a t defendant, in c a m i t t i n g the burglary,

inflicted bodily injury on Terry W. This sentence punished

defendant for yet a third time for i n f l i c t i n g bodily injury on Terry

W. Once is permissible--twice i s impermissible as constituting

double jeopardy--and three t h s is impermissible as constituting

t r i p l e jeopardy.

The remedy for t h i s Count I11 conviction i s the same as the

remedy for the Count I1 conviction. The conviction should be upheld

but the sentence should be vacated with instructions that any

sentence beyond 1 0 years (the maximum permissible for burglary) i s

constitutionally impermj-ssible as constituting double jeopardy.

SUMMARY

The Count I, aggravated assault conviction and the sentence

should stand. The Count 11, aggravated attempted sexual intercourse
without consent conviction should stand (but see Appendix A to this
dissent) but the sentence must be vacated with instructions that any
sentence beyond 20 years is constitutionally impermissible--as
constituting double jeopardy. The Count 111, aggravated burglary
conviction should stand (however, see Appendix B to this dissent)
but the sentence must be vacated with instructions that any sentence
beyond 10 years (the maximum sentence for burglary) is
constitutionally impermissible--as constituting double jeopardy.
It behooves those who represent defendants in criminal cases,
to not only carefully study the law applied to the case as it is
processed through the trial stages, but to also devote more time and
careful study to the sentencing statutes to be sure that their
clients are not victimized by an application of the sentencing laws
which ignores our constitutions--such as the double jeopardy
violations which I believe to exist in this case.
I cite as another example the case of State v Transgrud
.
, , .
(1982) - Mont - 651 P.2d 37, 39 St.Rep. 1765, a situation in
which I believe defendant was clearly subjected to a double jeopardy
application of the sentencing laws. The case was s t a i t d on
usnte
briefs. Although defendant did not raise the issue and the majority
did not see this underlying issue in their process of reviewing the
issues raised, I nonetheless recognized the issue and raised it in
my dissent. Had the issue been raised, the defendant may we11 have
achieved a different and,the proper result insofar as his sentence
was concerned.
Now i vogue is a policy of imprisoning as many convicted
n
felons as possible for as long as possible. And so it is that
mandatory sentencing statutes and statutes which increase the
palties because of aggravating factors, are now in vogue. In this
case, no mandatory penalties existed, but m r e severe maximum
sentences existed. In the case of the Count I, assault conviction,
the minimum sentence was 2 years and the maximum smtence was 20
years. Defendant was sentenced to the maximum 20 years. In the
case of Count 11, aggravated attempted sexual intercourse without
consent conviction, the minirmnn sentence was 2 years and the maximum
sentence was 40 years in prison. Defendant was sentenced to the
maximum 40 years in prison. For the Count 111, aggravated burqlq
conviction, the minimum sentence is simply any term not to exceed 40
years in prison. Defendant was sentenced to the m i m u m 40 years in
prison.
Regardless of these popular trends, either mandated by statutes
or sensed by sentencing courts who are responding to popular
sentiment, I trust that at least most of our citizens recognize and
accept the fact that our United States and Montana Constitutions
still exist, and that their provisions ought not to be as responsive
to the prevailing winds.
It is the duty of the courts to give meaning to these
constitutions. Too often the trial courts are unwilling to rule in
a way they knew they should because the decision will be unpopular.
They would rather have an appellate court be the scapegoat for an
unpopular decision.
 APPENDIX A

As stated, defendant was charged under section 45-5-503,
MCA, as though the aggravating factors listed in subsection
(3) are part of the offense itself. However, subsection (1)
clearly defines the offense, and subsection (3) simply sets
forth the aggravating factors, which, if proved, make the
sentencing potential more severe--40 years maximum as opposed
to 20 years maximum.
The question, therefore, arises as to whether these
aggravating factors can be charged as part of the offense
itself. If they can, they effectively change the definition
of the defense as set forth in subsection (1). If they
cannot be charged as elements of the crime, the question
arises as to how these elements are proved. Can they be
listed as separate factors on which the jury must make
special findings? Or, can they simply be factors which the
State can prove as part of the sentencing process?
The manner in which these aggravating factors are set
forth in section 45-5-503, MCA, suggests that they are not
elements of the offense itself. (By contrast see, the
aggravating factors set out in the burglary statute, section
45-6-204, discussed in Part I11 of this dissent and in
Appendix B.) If they are not elements of the offense, it
logically follows that the State need not prove these factors
to the jury but instead can prove these factors after
conviction as part of the sentencing process. In such case,
due process would obviously require that the State give
notice to defendant of its intent to rely on aggravating
factors listed in subsection (3) of this statute.
 A further question is whether the sentencing court as
part of the sentencing process, can, on its own motion, rely
on these aggravating factors in determining what sentence to
impose. Again, if this is permissible, due process would
require that defendant be given notice of the court's intent.
Defendant could argue, on the other hand, that he should
not be deprived of a jury trial on such essential
factors--factors which, if proved, allow the trial court to
double the sentence. Along with an argument of a right to
jury trial, however, is the question of whether the jury can
make special findings on these aggravating factors.
Arguably, special findings would offend section 46-16-603(1),
MCA, which requires that in all criminal cases the verdict be
a general verdict only.
A further question presents itself. Arguably, the
aggravating factors set out in subsection (3) were meant only
to apply to a situation in which there has been a conviction
for the completed offense rather than to a conviction of an
attempt to commit that offense. If this is so, a conviction
of the attempt would result in a maximum 20 year prison
sentence rather than the 40 years imposed here.
 APPENDIX B
The burglary statute, in contrast to the sexual
intercourse without consent statute (see Appendix A), defines

two offenses: the offense of burglary (section 45-6-204(1))
and the offense of aggravated burglary (section 45-6-204 (3) .
(See the text of this statute quoted in Part I11 of this

dissent. )
In the context of this case, however, the essential
feature which distinguishes the crime of burglary from that

of aggravated burglary, is the allegation that while in the
occupied house the defendant inflicted bodily injury on Terry
W. Because of the manner in which defendant was charged, it
was an all or nothing situation. That is, unless the jury
found that defendant inflicted bodily injury on Terry W.,
defendant could not be convicted of any burglary charge. (See
the jury instructions quoted in Part I11 this dissent.)
But whether one is punished more severely because he has
inflicted bodily injury (Count 11, attempted aggravated
sexual intercourse without consent) or whether he is
convicted of an offense which is made more serious by the
infliction of bodily injury (Count 11, aggravated burglary) ,
the result is the same. In each situation the infliction of
bodily injury is used as the basis for the more severe
sentence. The result is double jeopardy. - many times can
How
a
- defendant - punished
be for inflicting - - bodilv
the same
injury?