No. 83-28 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAN ROBERT GOODWIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

Intand for the County of Custer, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark Murphy argued, Asst. Atty. General, Hcklena 

Keith D. Haker, County Attorney, Miles City, Montana 

Dennis Corbin, Deputy County Atty. present at argument, Miles City, Montana 

Submitted: 12/1/83 

Decided: 3/29/84 

PAR 2 9 1984 

Filed: 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Daniel Robert Goodwin appeals from the 

sentence imposed for aggravated kidnapping by the Sixteenth 

Judicial District Court, Custer County. The District Court 

found that the victim suffered serious bodily injury and 

imposed a 60-year sentence. We affirm. 

The following issue is dispositive: 

Is there sufficient evidence to support the District 

Court's finding that the victim suffered serious bodily 

in jury? 

On February 17, 1981 at about 6:50 p.m., the Custer 

County dispatcher received a call from parents reporting 

their seven-year-old daughter missing. They said she had 

last been seen near a local church around 5:30 p.m. talking 

to a middle-aged man with glasses who was sitting in a 

two-tone maroon or dark-red. Chevy pickup with Yellowstone 

County license plates. 

Around 7:30 p.m., the girl appeared at home looking 

dirty, dishevelled and bloody. She gave a detailed 

description of a man, who later turned out to be defendant, 

and his vehicle. She stated she had been taken by the man 

toward the airport on the Jordan highway. The man parked the 

truck by the road. He took her clothes off and tied her to 

the truck seat with a white rope. The man choked her and 

assaulted her, sexually and otherwise. He threatened to have 

her killed if she told anyone what he had done. He then 

dropped her off about 5 blocks from home and she walked the 

rest of the way home. 

The girl was taken to the hospital where an examination 

revealed various bruises and lacerations, including a severe 

laceration in the vaginal area extending all the way to the 
cervix. Major surgery was required to repair the vaginal 

laceration. 

Meanwhile, authorities began a search of local motels. 

At one local motel, police discovered a parked pickup 

matching the description given by the victim. After 

attending the medical examination of the victim, police 

returned to the motel. Through the window of the truck, they 

observed what appeared to be blood stains on the seat. They 

knocked on the door of the room and defendant opened the 

d.oor. The police advised him of his rights and told him that 

he and his truck matched the description given by a possible 

rape victim. He was arrested and taken to the Custer County 

Jail. 

Defendant was charged on February 19, 1.981 with 

aggravated kidnapping and sexual intercourse without consent. 

The State gave notice of intent to treat him as a persistent 

felony offender. He pleaded guilty on October 1, 1981 to 

aggravated kidnapping and felony sexual assault. Defendant 

acknowledged by affidavit that he was a persistent felony 

offender. 

Prior to sentencing, defendant's counsel moved the court 

to declare sections 45-5-303(2) and 46-18-223, MCA 

unconstitutional. Section 45-5-303(2), MCA is the aggravated 

kidnapping sentencing statute, which in part provides that a 

person convicted of the offense may be imprisoned up to 100 

years unless he has voluntarily released the victim alive, in 

a safe place and not suffering from serious bodily injury, in 

which case the maximum term of j-mprisonment is 10 years. 

Section 46-18-223, MCA sets forth the procedures and 

standards for determining the applicability of exceptions to 

mandatory minimum sentences. Defendant argued that these 

statutory provisions impermissibly shift the burden of proof 
to the defendant or fail to require establishment of facts by 

the State by a sufficiently stringent standard. After a 

lengthy sentencing hearing, the court sentenced defendant to 

60 years for aggravated kidnapping and 15 years for sexual 

assault and ordered the sentences to run concurrently. The 

court designated defendant a persistent felony offender and a 

dangerous offender. The sentences were conditioned upon the 

court's rulings on the constitutional issues. The motions 

were briefed and later denied by the court. Defendant 

appeals. 

The dispositive issue is whether there is sufficient 

evidence to support the District Court's findings that the 

victim suffered serious bodily injury. 

The extent of the victim's injuries is important here 

because if the victim suffered serious bodily injury, 

defendant may receive a sentence of up to LOO years under the 

aggravated kidnapping statute. But if the victim was injured 

to some lesser degree, defendant's maximum sentence under 

that statute is 10 years. Section 45-5-303(2), MCA. Here, 

the District Court specifically found there was serious 

bodily injury. 

Montana law disthguishes "serious bodily injury" from 

"bodily injury." Section 45-2-101(59), MCA defines "serious 

bodily injury" as: 

" . . . bodily injury which creates - a substantial 

-- risk of death or which causes serious permanent 

disfiqurement orprotracted loss or impairment of 

the function or process of any bodily member or 

organ. It includes serious mental illness or 

impairment." (emphasis added) 

"Bodily injury" is defined as "physical pain, illness or any 

impairment of physical condition and includes mental illness 

or impairment." Section 45-2-101(5), MCA. 
The Compiler's Comment on the "serious bodily in jury" 

definition states that aggravated kidnapping and assault are 

"graded in part by the degree of bodily harm threatened or 

inflicted. Serious bodily injury differs from bodily 

injury . . . in the substantiality of pain, risk, 

disfigurement, or impairment which is created." The statutes 

leave for the courts the difficult line-drawing involved in 

distinguishing the two categories of injury. 

The defendant contends the evidence satisfies none of 

the criteria listed in the definition of serious bodily 

injury. A review of the sentencing transcript is appropriate 

here. 

The testimony indicated that defendant inflicted upon 

the victim a laceration of the vaginal cavity extending from 

the opening of the vagina to the cervix. The laceration 

stopped just short of the perineal membrane, which encloses 

the abdominal cavity. The danger of infection is most 

significant if bacteria is introduced into the a.bdomina1 

cavity by a puncture in that membrane, although no puncture 

occurred here. 

Major surgery was performed to repair the laceration. 

The surgeons u.sed general anesthesia to perform the 

operation. One of the doctors, Dr. Rauh, testified: 

"Q: Now, Dr. R-auh, if [the victim's] injury had 

gone untreated . . . would you consider this 

injury . . . a serious injury? 

"A: Yes, sir. 

IIQ: And in what terms would you say it was 

serious, could you explain to the Court why it is a 

serious injury? 

"A : This injury was serious because of the 

potential long-term scarring and alteration with 

particularly normal sexual function. The wound was 

contaminated with potential risk for overwhelming 

infection. Those were the primary serious natures 

of the wound. 
"Q: . . . if [the victim] had not been brought to 

you for medical treatment, was there any 

substantial risk of death to her? 

"A: There would have been a risk of death, yes. 

r'Q: In what form, for not having the surgery, 

bleeding, or what would be the substantial risk of 

death? 

"A: Infection." Tr. at 12-14. 

On cross-examination, Dr. Rauh further indicated that upon 

initial examination he considered her life in substantial 

danger. He stated that the laceration was more severe than 

incurred in ordinary childbirth. Due to the injury a portion 

of the hymen was missing. He agreed that the victim was 

permanentl-y scarred. 

Dr. Parke, who assisted Dr. Rauh, testified that "this 

was a very serious laceration." The laceration was very near 

the perineal membrane. The abdominal cavity could have been 

exposed to bacteria normally present in the vaginal and 

rectal areas and the seriousness of any infection would be 

greater because the victim was a preadolescent. In 

preadolescents, blood supply which helps fight infection is 

less than in a.n adult. Dr. Parke testified there is a 

permanent scar resulting from the laceration. There were 

also bruises on the neck, throat, back and chest, as well as 

bleeding from the soft palate. Dr. Parke stated the victim 

ha.d been in substa.ntia1 rj-sk of death from choking. He 

testified there is usually an emotional scar in such cases of 

child sexual abuse, although in this case it was too early to 

tell. It was also too early to know whether normal sexual 

intercourse or childbearing would be possible. 

Defend.ant, however, emphasizes the la.ck of certainty in 

the testimony. He contends that conditions threatening to 

life were only possibilities which did not occur. He argues 

there was no substantial risk of death because the infection 
feared by the doctors never occurred. Further, he contends 

that successful medical treatment obviated the risks. 

In State v. Fuger (1976), 170 Mont. 442, 554 P.2d 1-338, 

defendant was convicted of aggravated assault for inflicting 

serious bodily injury to another by kicking and beating him 

about the face and upper portion of the body. The defendant 

contended that the evidence was insufficient to show tha.t the 

victim faced a "substantial risk of death" under the 

definition of serious bodily injury. 

In Fuger, the victim was first treated in the emergency 

room at Daly Hospital in Hamilton and later transported to 

Missoula for further examination and treatment. The doctor 

testified h.e was transferred because the Hamilton hospital 

was not equipped to handle seriously injured or gravely 

injured head-type cases. The examining physician testified 

that at the time of examination he was in a potentially 

dangerous sit.uation and facing a substantial risk of death. 

When admitted to the hospital, the victim was in a 

semi-conscious state with extensive bruises and swelling 

around the face. Further examinations showed he had suffered 

a broken nose and a fractured palate. 170 Mont. a.t 444-45, 

554 P.2d at 1340. 

The substance of defendant's argument in Fuger was that 

in retrospect the victim had not been in substantial risk of 

death. We stated that even though " [nlo serious 

complications in fact developed as a result of [the victim's] 

injuries," the evidence was sufficient to support a finding 

of serious bodily injury. The test is not "whether the 

victim lives or dies." 170 Mont. at 445, 554 P.2d at 1340. 

The defendant's argument here is indistinguishable from 

that rejected in Fuger. He argues that potential 

complications must actually occur before there can be a 
substantial risk of death. However, as Fuger makes clear, it 

is the element of substantial risk of death rather than near 

death or death itself which establishes serious bodily 

in jury. 

The clear and uncontradicted evidence is that the victim 

suffered a serious laceration requiring major surgery. Both 

physicians testified the victim faced a substantial risk of 

death from possible infection and gave reasons to support 

their conclusions. The evidence is sufficient under any 

standard to support a findinq that the victim was in 

substantial risk of death and was suffering serious bodily 

injury. 

The record also supports a finding that the defendant 

inflicted serious permanent disfigurement on the victim. The 

term "disfigurement" connotes, among other things, deformity, 

defacement, marring and/or damage to one's attractiveness. 

The doctors testified that the victim would bear a permanent 

scar in the vaginal and perineal areas and that after the 

injury a portion of the victim's hymen was missing. It is 

beyond dispute that the victim has been left with a serious 

permanent disfigurement within the commonly accepted meaning 

of that word. Serious permanent disfigurement is an 

additional basis for a finding of serious bodily injury. 

We hold there is sufficient evidence under any 

evidentiary standard to support the District Court's finding 

of serious bodily injury. 

Defendant also argues that the aggravated kidnapping 

sentencing statute, section 45-5-303 (2) , MCA , is 

unconstitutional because it shifts the burden to defendant to 

disprove an element of the offense or it requires proof by 

the State by too low an evidentiary standard. Section 

45-5-303 (2), MCA provides: 
"(2) Except as provided in 46-18-222, a person 

convicted of the offense of aggravated kidnapping 

shall be punished by death or life imprisonment as 

provided in 46-18-301 through 46-1-8-310 or be 

imprisoned in the state prison for a term of not 

less than 2 years or more than 100 years - and may - be 

fined not more than $50,000, unless he - - has 

voluntarily released the victim alive, --- in a safe 

place, - and - not sufferinq from serious bodily 

injury, in which event he shall be imprisoned in 

the stateprison ------- for aterm of not less than2 

--L years or more than 10 vears and mav be fin.ed no'f: 

more than $50,000. I' (emphasis addedf 

Here, it is not disputed whether the defendant voluntarily 

released the victim alive and in a safe place. The dispute 

is whether the victim was suffering from serious bodily 

in jury. The defendant contends this statute 

unconstitutionally places the burden on him to disprove 

serious bodily injury to avoid enhancement of his sentence. 

However, we find it unnecessary for several reasons to 

reach this issue. First, as noted above, regardless of what 

evidentiary standard is applied, the evidence here is 

sufficient to support a finding of serious bodily injury. 

Second, even if it could be established that the statute 

places the burden of proof on the defendant, the burden was 

not so placed in this case. Here, the State assumed the 

burden of proving serious bodily injury. The State presented 

two medical witnesses whose testimony established that the 

victim suffered serious bodily injury. 

The defendant also complains that section 46-18-223 (3) , 

MCA applies an unconstitutionally low evidentiary standard. 

However, this statute was not applied in d.efendantts case. 

The defendant was not subjected to any of the alleged 

constitutional errors he complains of and these issues are 

therefore not before this Court. 

Moreover, even if the defendant prevailed on these 

issues, there is a valid alternative basis which supports his 

60-year aggravated kidnapping sentence. The State gave 
notice of intent to seek persistent felony offender status 

for defendant. Defendant admitted by affidavit the prior 

felonies, the sentences received and that less than 5 years 

had elapsed since his last felony conviction. In short, 

defendant admitted to being a persistent felony offender and 

the District Court designated defenda.nt a persistent felony 

of fender. Section 46-18-502(1), MCA provides that a 

persistent felony offender "shall be imprisoned in the state 

prison for a term of not less than 5 years or more than 100 

years . . . . " Defendant's sentence is within the range of 

sentences authorized by the Legislature for persistent felony 

offenders. 

We affirm the judgment of the District Court. 

We concur: 

3~&&d~ Chief Justice