No. 92-214 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJACK 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 ~ifth Judicial 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-~urd 1989) (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. 

I Bush 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 f inned. 
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