No. 92-214
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JACK SAGE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Donahoe & Yeshe, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General
John Paulson, Assistant, Helena, Montana
Richard Llewellyn, County Attorney
John P. Connor, Special Deputy County Attorney
Boulder. Montana
NOVIB 1992 Submitted: September 4, 1992
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from the ~ i f t hJudicial District Court,
Jefferson County, order denying defendant's motion to dismiss. We
affirm. The sole issue on appeal is whether solicitation of incest
is a crime in Montana.
In September, 1990, J.S. was alone in a swimming pool with
defendant, her natural father. Defendant repeatedly asked J.S. to
"fool around" with him. She refused because the request had a
sexual connotation.
J.S. told a social worker that her father became increasingly
aggressive toward her. In mid-March of 1991, he cut a peep hole in
the bathroom wall so he could watch J.S. Later that month, when
J.S. and her father were home alone, he again asked her if she
would "fool around" with him. When she refused he asked, "Please,
for me?" J.S. continued to refuse her father's propositions.
After showering on April 2, 1991, J.S. discovered a video camera
hidden in the bathroom. The camera was running and aimed to video
tape a person in the bathroom.
Defendant admitted to law enforcement officers that he asked
his daughter to fool around with him in a sexual manner. Defendant
further admitted that he had placed the video camera and drilled
the peep hole. He conceded he knew these actions were wrong.
The State charged the defendant, Jack Sage, with two counts of
solicitation of incest in violation of 5 45-4-101, MCA, and 3 45-5-
507, MCA. Defendant filed a motion to dismiss, arguing that
solicitation of incest is not a crime in Montana. The District
Court denied the motion. On December 9, 1991, defendant entered a
conditional guilty plea to one count of solicitation of incest.
The District Court found that defendant was in fact guilty of
soliciting incest and gave him a deferred imposition of sentence.
Defendant appeals contending the District Court erred in denying
his motion to dismiss.
Our standard of review of a district court's conclusions of
law is plenary. We determine whether the district court's
conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990),
245 Mont. 470, 474, 803 P.2d 601, 603.
The policy behind the crime of solicitation is to protect
people from "exposure to inducements to commit or join in the
commission of crime." State v. Bush (1981), 195 Mont. 475, 480,
636 P.2d 849, 852. Among other things, the solicitation statute
facilitates prosecution of those who formulate and cultivate
criminal schemes before a completed scheme can cause injury to
others. William F. Crowley, Montana Criminal Law, 607-609 (1990).
Defendant contends solicitation of incest is not a crime in
Montana. He reasons he did not intend that J.S. commit a crime,
rather she was his intended incest victim. Relying on Illinois
law, defendant further reasons that the crime of solicitation
applies only where a person requests another to commit a crime and
not when the person solicits a victim. However, under Montana's
statute the status of the person solicited is neither an element of
nor a defense to the crime of solicitation. See 5 45-4-101, MCA.
Montana adopted its solicitation statute from the Illinois
Criminal Code of 1961. When Montana adopted it, the Illinois
statute read, "A person commits solicitation when, with intent that
an offense be committed, he commands, encourases or requests
another to commit that offense." Ill. Ann. Stat. ch. 38 para. 8-1
(smith-~urd1989) (emphasis added). When the Montana Legislature
adopted the statute in 1973 it changed the language. See 5 94-4-
101, RCM (1977). The legislature has not changed the statute since
its enactment. The Montana version states, "A person commits the
offense of solicitation when, with the purpose that an offense be
committed, he commands, encouraqes or facilitates the commission of
that offense." Section 45-4-101, MCA, (emphasis added).
By modifying the statute, the legislature broadened the types
of conduct which are criminal under the solicitation statute.
Bush
I 636 P.2d at 851. In Montana, the status of the person
solicited is not a part of the offense of solicitation, rather the
intent of the solicitor is the basis of the crime. Bush, 636 P.2d
at 852.
Defendant completed the crime of solicitation of incest when
he asked his daughter to aid him in performing incest. A person
commits incest if he knowingly has sexual contact with a
descendant. Section 45-5-507, MCA. Defendant purposely urged his
natural daughter to have sexual relations with him. Defendant thus
encouraged the commission of incest with the purpose that incest be
committed. Montana's statute requires nothing more to bring the
crime of solicitation to fruition. See 5 45-4-101, MCA.
Af fi n n e d .
November 16, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark P. Yeshe
Attorney at Law
P.O. Box 413
Helena, MT 59624
Hon. Marc Racicot
Attorney General
Justice BIdg.
Helena, MT 59620
John P. Connor, Jr.
Assistant Attorney General
Special Deputy County Attorney, Jefferson County
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: L