No. 94-253

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

-vsPAUL ORAN BLACK,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dennis G. Loveless, Attorney at Law,

Helena. Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg W. Coughlin, Ass't Attorney General,

Helena, Montana

Mike McGrath, Lewis and Clark County Attorney,

Helena, Montana
Justice Karla M. Gray delivered the Opinion of the Court.

Paul Oran Black (Black) appeals from his conviction by the

First Judicial District Court, Lewis and Clark County, of the

offense of sexual assault, a felony. We conclude that the District

Court did not err in convicting Black of an offense with which he

was not specifically charged, that the evidence is sufficient to

support the conviction, and that Black was afforded effective

assistance of counsel. Therefore, we affirm.

In 1987, Black rented a portion of the shop in which Gary

Russell operated an automotive repair business in Helena, Montana;

the shop was immediately adjacent to Russell's residence.

Russell's ten-year-old son, G.R., became acquainted with Black when

he visited his father in the shop. G.R. testified that Black gave

him several gifts and would grab his buttocks while he was in the

shop.

While on a fishing outing with G.R. at Ten Mile Creek, Black

pulled down his pants and masturbated in front of G.R. He asked

G.R. to expose his penis and, after initially refusing, G.R. did

so; Black neither touched G.R. nor asked G.R. to touch him.

During two subsequent outings to Ten Mile Creek, Black told

G.R. to pull down his pants and get on his knees; according to

G.R., Black then entered him from behind. G.R. also testified to

another "entering from behind" incident which occurred at Black's

house and was interrupted when Russell arrived with a vehicle he

had been repairing.

G.R. testified that he experienced extreme pain during these

2
incidents and bled after each. After each incident, Black said

that what they had done was "perfectly natural" and told G.R. not

to tell anyone. G.R. testified that he felt threatened by Black.

G.R. did not reveal the incidents to anyone until he suddenly

remembered them in September of 1993.

The State of Montana (State) charged Black with sexual

intercourse without consent, in violation of 5 45-5-503, MCA.

Through his counsel, Black notified the State of his intent to rely

on an alibi defense. The case was tried to the District Court

sitting without a jury.

The court acquitted Black of the charged offense, finding the

evidence insufficient to establish beyond a reasonable doubt that

Black actually penetrated G.R.'s anus. It found him guilty,

however, of felony sexual assault in violation of 5 45-5-502, MCA.

Black was sentenced to fifteen years' imprisonment, with five years

suspended upon certain conditions. Black appealed. Subsequent

events are not at issue in this case.

1 . Did the District Court err in convicting Black of

sexual assault?

Black advances three fundamental challenges to his conviction

of the offense of sexual assault. First, he argues that the

District Court was without authority to convict him of an offense

with which he was not charged. Second, he asserts that the

charging document was insufficient to serve as the basis for a

conviction of the offense of sexual assault. Finally, he contends

that his constitutional due process rights were violated by the

conviction for sexual assault.

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We note at the outset that the issue of whether sexual assault

is a lesser included offense of sexual intercourse without consent

is not before us in this case. Black did not raise the issue in

the District Court. Moreover, while he makes a passing reference

to the existence of the issue in his opening brief on appeal, that

brief contains neither argument nor legal authority relating to the

issue, as required by Rule 23(a) (4), M.R.App.P. Indeed, the

entirety of Black's argument in his opening brief relating to the

court's authority to convict him of an uncharged offense is

premised upon sexual assault being a lesser included offense of

sexual intercourse without consent. It is only in his reply brief

that Black argues that sexual assault is not a lesser included

offense of sexual intercourse without consent. Furthermore, unlike

cases such as State v. Voegele (lPPO), 243 Mont. 222, 793 P.2d 832,

the parties to this case have not raised or argued the plain error

doctrine, in either its statutory or judicially-created form,

insofar as that doctrine might provide a basis for our

consideration of the issue. Under these circumstances, that issue

is not properly before us and we specifically do not address it

here. Instead, we assume for purposes of this opinion that sexual

assault is a lesser included offense of sexual intercourse without

consent.

a . Was the District Court authorized to convict Black of

the lesser included offense of sexual assault?

Section 46-16-607(l), MCA, provides in pertinent part that a

"defendant may be found guilty of an offense necessarily included

in the offense charged . . . .I' The language of the statute is so

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plain as to need no interpretation. See Curtis v. Dist. Court of

21st Jud. Dist. (Mont. 1994), 879 P.2d 1164, 1166, 51 St.Rep. 776,

778 (citation omitted). Because we assume for purposes of this

case that sexual assault is a lesser included offense of sexual

intercourse without consent, the statute provides clear and express

authority for Black's conviction of the offense of sexual assault.

Black relies on § 46-16-607(2), MCA, and the 1991 Commission

Comment to the statute in making a circuitous argument regarding

when lesser included offense instructions may, may not and must be

given and how those issues relate to this case. Little discussion

of this argument is necessary.

We note first that, by its terms, 5 46-16-607(2), MCA, relates

only to jury trials. Questions relating to instructing the jury

simply do not arise in bench trials. Thus, § 46-16-607(2), MCA, is

inapplicable here.

For the same reason, the Commission Comment stating in part

that "[t]his statute is a newly developed provision intended to

regulate a jury's consideration of lesser included offenses" also

is inapplicable to this case involving a trial to the court. In

addition, we note that the portion of the Comment on which Black

relies--allowing a lesser included instruction "only upon a party's

request" and when warranted by the evidence--appears to vary the

terms of 5 46-16-607(2), MCA, which provides that a lesser included

offense instruction must be given upon a party's request when

sufficient evidence supports the instruction.

Black also argues that State v. Sheppard (1992), 253 Mont.

5
118, 832 P.2d 370, supports his position. Like § 46-16-607(2),

MCA, Sheooard is inapplicable to this appeal from a bench trial

because it addresses only questions relating to a trial court's

responsibilities in instructing a jury on lesser included offenses.

Those responsibilities are not relevant where the trial court is

deciding questions of both law and fact pursuant to §§ 46-16-103

and 46-16-110(3), MCA, and, as a result, no instructions are given.

W e conclude that 5 46-16-607(l), MCA, authorizes the

conviction of a criminal defendant for a lesser included offense.

Under the circumstances of this case, therefore, we hold that the

District Court was authorized to convict Black of the offense of

sexual assault.

b. Did the charging document provide a sufficient basis

for a conviction of the offense of sexual assault?

Black asserts that the information charging him with the

offense of sexual intercourse without consent did not provide him

with notice sufficient to enable him to prepare his defense to the

uncharged offense of sexual assault. His argument is not

persuasive.

Section 46-11-401, MCA, sets forth the requirements which must

be contained in the charging document. Here, the information

charging Black with sexual intercourse without consent meets the

statutory requirements; Black does not contend otherwise. He

argues that he could not be convicted of the offense of sexual

assault because that charge was not specifically included in the

information and, as a result, he did not have sufficient notice of

the possibility of a conviction of that offense.

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As discussed above, § '46-16-607(l), MCA, unambiguously and

expressly authorizes a defendant's conviction of an offense

included in the charged offense. The statute itself provides the

notice that a conviction for a lesser included offense is

possible. Because we assume for purposes of this case that sexual

assault is a lesser included offense of sexual intercourse without

consent, Black had notice via the information and § 46-16-607(l),

MCA, that he could be convicted of the lesser included offense.

While we have not previously addressed the precise issue of

notice vis-a-vis § 46-16-607(l), MCA, the California Supreme Court

did so succinctly in People v. Lohbauer (Cal. 1981), 173 Cal.Rptr.

453. There, the California court determined that the requisite

notice is afforded where an offense is necessarily included within

the statutory definition of the charged offense and a conviction of

the included offense is statutorily authorized. Lohbauer, 173

Cal.Rptr. at 454.

Nor do the Montana cases on which Black relies 'support his

position. State v. Kills on Top (1990), 243 Mont. 56, 71, 793 P.2d

1273, 1283, State v. Matson (1987), 227 Mont. 36, 43, 736 P.Zd 971,

975, and State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d

436, 438, all state the general rules regarding the necessity of

reasonably apprising the accused of the charges against him in the

information so that a person of common understanding would know

what offense is being charged. None of those cases involved the

issue now before us regarding notice of lesser included offenses

vis-a-vis § 46-16-607(l), MCA.

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Black also advances arguments, as he did in challenging the

District Court's authority to convict him of the lesser included

offense, premised on cases involving a trial court's jury

instructions on lesser included offenses. Here too, as above,

those cases are inapplicable to this case which was tried to the

District Court sitting without a jury.

Finally, Black argues that "the main case on point" is State

v. Copenhaver (19071, 35 Mont. 342, 89 P. 61. He urges that our

statements in Cooenhaver, 89 P. at 62, that "the defendant was

charged with one crime and convicted of another. The judgment must

therefore be reversed . . .I' are equally applicable here. His

reliance on Conenhaver is misplaced.

In Copenhaver, the defendant was charged with burglary in the

nighttime or, as defined by statute, burglary in the first degree;

he was convicted of burglary in the daytime, or burglary in the

second degree. We reversed on appeal, concluding that burglary in

the nighttime clearly did not "include" burglary in the daytime.

Cooenhaver, 89 P. at 62. Thus, unlike the present case, Cooenhaver

did not involve a conviction of a lesser included offense; it

involved a conviction of a separate, independent offense which was

not a lesser included offense. Indeed, we specifically noted in

Copenhaver that § 2147 of the Penal Code--a predecessor to 5 4616-

607 (1), MCA--would have authorized a conviction for an offense

included in the charged offense. Copenhaver, 89 P. at 62.

The information charged Black with sexual intercourse without

consent. For purposes of this case, we assume that sexual assault

8
is a lesser included offense of sexual intercourse without consent.

Section 46-16-607(l), MCA, expressly authorizes a conviction for an

offense included in the charged offense. For these reasbns, we

conclude that the charging document provided a sufficient basis for

Black's conviction of the offense of sexual assault.

C . Did the conviction of the offense of sexual assault

violate Black's constitutional right to due process?

Black's due process arguments are premised on his assertion

that he did not have notice of the offense of which he ultimately

was convicted. We have concluded to the contrary based on the

statute. Black had notice of the possibility of a conviction of

sexual assault pursuant to 5 46-16-607(l), MCA, which specifically

authorizes a conviction for an offense included in the charged

offense. Little more need be said.

Both the Montana Constitution, Article II, § 24, and the Sixth

Amendment to the United States Constitution guarantee accused

defendants certain due process, including the right to be informed

of the nature and cause of the accusation. Relying on State v.

Barker (19931, 260 Mont. 85, 858 P.2d 360, Black argues that his

conviction of the offense of sexual assault violated his due

process rights.

In Barker, we concluded that a justice court conviction for

reckless driving after a charge of driving under the influence of

alcohol violated due process. Barker, 858 P.2d at 362. We stated

that it is elementary that a party cannot be charged with one

offense and "convicted of another independent offense." Barker,

858 P.2d at 362 (citation omitted). The quoted language

9
establishes the distinguishing factor between Barker and the

present case: Barker involved two independent offenses. Indeed, we

specifically stated therein that "reckless driving is not a lesser

included offense of driving under the influence" and, on that

basis, concluded that Barker could not be convicted of an offense

"independent" from that charged. Barker, 858 P.2d at 362. Barker

has no application here.

Like the California court in Lohbauer, we conclude that the

notice required by the constitutional guarantee of due process is

afforded where an offense in included within the charged offense

and a conviction of the included offense is authorized by statute.

We hold that Black's due process rights were not violated, under

the circumstances of this case, by his conviction of the offense of

sexual assault.

2 . Does sufficient evidence support Black's conviction

of the offense of sexual assault?

Our standard in reviewing the sufficiency of evidence in

criminal cases is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt. State v. Licht (Mont. 1994), 879 P.2d 670, 675, 51 St.Rep.

686, 689 (citation omitted).

Black does not dispute that G.R. 's testimony establishes the

elements of sexual assault as that offense is statutorily defined.

Moreover, the law is clear in Montana that a victim's testimony in

a sex offense case is sufficient to sustain a conviction and needs

no corroboration. State v. Biehle (1992), 251 Mont. 257, 260, 824

10
P.2d 268, 270-71.

Black argues that, in rejecting G.R.'s testimony regarding the

extent of the actual sexual intercourse or penetration, the

District Court determined that G.R. was not a credible witness.

With that purported determination as a base, Black contends that

adding discrepancies in G.R.'s testimony and that of others

testifying compels a determination that G.R.'s testimony was

incredible in its entirety and, therefore, insufficient to support

the conviction.

Black cites no authority for his position. In addition, he

apparently overlooks the District Court's specific determination

that "G.R. was a credible witness." As we have stated,

[a] trial court acting as a finder of fact is in the best

position to observe the witnesses, including their

demeanor and credibility. . . . The weight of the

evidence and the credibility of the witnesses are

exclusively the province of the trier of fact . . . .

State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94

(citation omitted).

The court's credibility determination and the weight it gave

G.R.'s testimony were exclusively within its province as the trier

of fact in this case; the same is true regarding the court's

weighing of all the evidence before it, including discrepancies in

testimony. We will not substitute our judgment for that of the

trier of fact on matters of credibility and the weight of evidence.

We hold, therefore, that sufficient evidence supports Black's

conviction of the offense of sexual assault.

3 . Was Black afforded effective assistance of counsel?

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This Court has adopted the two-prong test set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674, for determining whether counsel was ineffective.

State v. Mahoney (Mont. 1994), 870 P.2d 65, 72-73, 51 St.Rep. 160,

164. Under the first prong of that test, a defendant must show

that counsel's performance was deficient by demonstrating that

counsel was not functioning as the "counsel" guaranteed by the

Sixth Amendment to the United States Constitution; under the second

prong, a defendant must show that counsel's deficient performance

so prejudiced him that he was deprived of the right to a fair

trial. Mahonev, 870 P.2d at 72-73.

Black's contention that he did not receive effective

assistance of counsel is premised on two alleged deficiencies.

Black relies first on State v. Denny (1993), 262 Mont. 248, 865

P.2d 226, in arguing that counsel's failure to interview witnesses

who would have supported his alibi defense constituted deficient

performance. In this regard, we note that the alleged failure to

interview helpful witnesses cannot be either established or

disproved on the record before us; as a result, that allegation of

ineffective assistance of counsel cannot be addressed in this

direct appeal from Black's conviction.

Black also argues that counsel failed to follow up on

discrepancies in the testimony of the State's witnesses. Here, we

need consider only the first prong of the Strickland test to

conclude that Black has not met his burden of establishing

ineffective assistance of counsel. The record before us

12
establishes that counsel cross-examined each of the State's

witnesses. The cross-examinations tested the witnesses' memory of

events occurring some six years earlier and attempted to cast doubt

on the witnesses' recollections and credibility. Black cites no

authority in support of his general and conclusory allegation that

more, or different, cross-examination was required.

A strong presumption exists that counsel's conduct falls

within the wide range of reasonable professional assistance.

Dennv, 865 P.2d at 228-29; citing Nealy v. Cabana (5th Cir. 1985),

764 F.2d 1173, 1177-1178. Black's conclusory allegations do not

begin to establish that counsel's performance was not reasonable

under prevailing professional norms. Denny, See 865 P.2d at 228;

citing Lawrence v. Armontrout (8th Cir. lYYO), 900 F.2d 127, 129

(citation omitted). We conclude that Black has not met the first

prong of the Strickland test by demonstrating record-based

deficient performance by counsel and, to that extent, we hold that

he was afforded effective assistance of counsel.

Affirmed.

We concur:

Justices

13
Justice W. William Leaphart, dissenting.

I dissent for the reason that I find the Court's reasoning

offends due process of law. The majority points out that the

question of whether sexual assault is a lesser included offense of

sexual intercourse without consent has not been addressed by this

Court. The Court takes the position that the issue is not properly

before the Court because Black did not raise this issue in his

opening brief. As it has done on four previous occasions, the

Court then declines to rule on that question but assumes, for

purposes of this decision, that sexual assault is a lesser included

offense of sexual intercourse without consent. State v. Sheppard

(Mont. 1995), ____ P.2d __, 52 St.Rep. 106; State v. Ogle (1992),

255 Mont. 246, 841 P.2d 1133; State v. Sheppard (1992), 253 Mont.

118, 831 P.2d 370; State v. Lundblade (1986), 221 Mont. 185, 717

P.2d 575. Based upon that assumption, the Court then determines

that the District Court was within the law and the constitution

when it found Black guilty of sexual assault even though Black was

charged only with sexual intercourse without consent. A criminal

conviction cannot be based upon an assumption of such a fundamental

legal proposition.

The majority concedes that the question of lesser included

offense has not been addressed. Nonetheless, it is willing to

affirm the conviction based upon an assumption that the crime of

which Black was convicted (sexual assault) is a lesser included

offense of the crime with which he was charged (sexual intercourse

14
without consent). Since the question is admittedly an open

question, let us assume the opposite--that sexual assault is not a

lesser included offense. Then, of course, Black stands convicted

of an offense for which he was given no notice. The Information

does not charge Black with sexual assault. Black would have had no

reason to believe that he was even at risk of being convicted of

sexual assault until such time as the court rendered its final

judgment. Without advance knowledge of what the charge is, the

accused is unable to exercise any meaningful decisions about his

defense: what witnesses (if any) to call, whether he will take the

stand himself, whether he will seek a bench trial or a jury trial--

just to name a few of the more obvious and basic decisions

confronting a person accused of a crime.

Due process of law requires, at a minimum, that a defendant be

reasonably apprised of the charges against him in the charging

document in such a manner that a person of common understanding

would know what offense is being charged. State v. Kills On Top

(1990), 243 Mont. 56, 71, 793 P.2d 1273, 1283. In State v. Barker

(1993), 260 Mont. 85, 89, 858 P.2d 360, 362, we held that it is

"elementary" that a party cannot be charged with one offense and

convicted of another independent offense. In my opinion, this

Court cannot circumvent such a fundamental and "elementary" legal

proposition by resorting to an assumption that sexual assault is a

lesser included offense merely because Black's counsel has failed

to raise the issue in his opening brief. Black's counsel did

contend, in his Issue number two, that Black was convicted of an

15
offense of which he was not charged. In its Answer brief, the

State countered that sexual assault is a lesser included offense of

sexual intercourse without consent and, as such, notice of the

lesser included offense is included within the charge of the

greater offense. Black, in his Reply brief, argued that sexual

assault is not a lesser included offense. Thus, although the issue

could have been more artfully raised and addressed, the parties did

discuss and brief the issue. Given the fundamental and elementary

nature of the issue--if the trial court were incorrect in assuming

that sexual assault is a lesser included offense--that assumption

amounts to plain error which this Court should address regardless

of whether defense counsel raised the issue in a proper manner. In

State v. Voegele (1990), 243 Mont. 222, 224, 793 P.2d 832, 834,

this Court held that:

"[wlhen the substantial rights of a defendant are

involved, the lack of timely objection does not preclude

us from exercising our power of discretionary review to

examine any error at the trial court level." State v.

Wilkins (1987), 229 Mont. 78, 80-81, 746 P.2d 588, 589.

This discretionary review under the plain error doctrine

provides a remedy to prevent manifest injustice and will

only be used in exceptional cases.

In addressing the power of an appellate court to raise, sua

sponte, and determine issues which were not raised either in the

trial court or by any of the parties on the appeal, the Kansas

Supreme Court has stated:

The conclusion which we have reached from these cases is

that, although ordinarily an appellate court will not

consider an issue which has not been raised in the trial

court or which has not been raised by the parties on

appeal, the court does have the power to do so in

exceptional circumstances, where considerations of the

new issue is necessary to serve the ends of justice or to

16
prevent a denial of fundamental rights.

State v. Puckett (Kan. 1982), 640 P.2d 1198, 1201.

It is axiomatic that the right to be put on notice of the

crime you are being charged with is a fundamental as well as a

"substantial" right. If we assume that the District Court was

incorrect in its assumption, this is one of those "exceptional"

cases in which the Court must invoke the doctrine of plain error in

order to prevent manifest injustice; the manifest injustice being

that Black is deemed to have been put on notice of the crime of

sexual assault by virtue of having been charged with sexual

intercourse without consent. This result is reached via an

assumption (rather than a legal conclusion) that sexual assault is

a lesser included offense of sexual intercourse without consent.

This assumption flies in the face of the notice requirement of the

guarantee of due process. Either sexual assault is a lesser

included offense or it is not. If it is, then under the law, Black

is deemed to have been put on notice of that offense when he was

charged with sexual intercourse without consent. If it is not,

then Black was not put on notice of the crime of which he was

ultimately convicted and his conviction cannot stand.

For the above-stated reasons, I dissent from the Court's

decision to affirm a conviction based upon a mere assumption that

sexual assault is a lesser included offense of sexual intercourse

without consent.

lLiiGhi&~

Justice

17
Justice Terry N. Trieweiler and Justice William E. Hunt, Sr.,

join in the foregoing dissent of Justice w. William Leaphart.

ustice

Justice