NO. 95-216 INTHESUPREMECOURTOFTHESTATEOFMONTANA

STATEOFMONTANA,

Plaintiff and Respondent,
v. LESLIE McQUISTON,

Defendant andAppellant.1996

APPEAL FROM: District Court of the Fifth Judicial District,

In andfor the County of Beaverhead, TheHonorable Frank Davis, Judge presiding.

COUNSELOFRECORD:

For Appellant: William F. Hooks, State Appellate Defender, (argued) Helena, Montana
For Respondent: Hon. Joseph P.Mazurek, Attorney General, Elizabeth L. Griffing, Ass't Attorney General, (argued) Helena Montana Thomas R.Scott, County Attorney, Dillon, Montana

Filed: Heard: May 14, 1996 Submitted: May31, 1996 Decided: August 6, 1996Justice Charles E. Erdmann delivered the Opinion of the Court.

Appellant Leslie McQuiston appeals from the judgment and sentence entered bythe Fifth Judicial District Court, Beaverhead County, convicting him of sexual intercourse without consent and incest. Weaffirm. The issues onappeal are asfollows: 1. Did the District Court err in allowing testimony regarding other acts committed byMcQuiston? 2. DoMcQuiston's convictions for sexual intercourse without consent and incest violate double jeopardy protections? 3. Did the District Court err in sentencing McQuiston? FACTS In February 1989, Heidi McQuiston (Heidi) wasnineteen years old. Shelived in amobile homein Dillon with her two children, her natural mother, Jackie Jenkins (Jackie), her brother and her adoptive father, Leslie McQuiston (McQuiston). Heidi testified that onor about February 10, 1989, McQuiston
cameinto the kitchen where shewasstanding andasked her to goto his bedroom because heneeded to talk to her. Neither her mother
nor her brother were home. Heidi followed McQuiston into the bedroom where he shut the door behind her. McQuiston then told Heidi to take her clothes off andtold her hewould beat her if she refused. Heidi took her clothes off andMcQuiston told her to get
on the bed. He then disrobed himself and engaged in sexual intercourse with her.OnJanuary 3, 1994, McQuiston was charged by Information in

the Fifth Judicial District Court, Beaverhead County, with one count of sexual intercourse without consent, afelony, pursuant to §45-5-503, MCA,and in the alternative, with onecount of incest,
afelony, pursuant to §45-5-507, MCA. Inasupporting affidavit, the County Attorney stated that Heidi had given birth to three children and that McQuiston wasthe putative father of all three. Results of paternity tests indicated over aninety-nine percent probability that McQuiston was the father of Heidi's three children. McQuiston moved to dismiss the charge of sexual intercourse without consent claiming that only the incest statute applied to him. TheDistrict Court denied the motion andthe State then filed
an amended Information indicating that the charges of sexual intercourse without consent andincest were charged separately and independently, not alternatively. Ajury trial was conducted onOctober 6and 7, 1994. After Heidi testified about the specific incident for which McQuiston was charged, a sidebar discussion took place off the record. The District Court then admonished the jury that the testimony they
were about to receive concerned other acts by the defendant and that the evidence wasnot being admitted to prove the character of the defendant. The court told the jurors that McQuiston was not being tried for other crimes, wrongs, oracts andthat they were to consider the testimony for limited purposes.

3After the court admonished the jury, Heidi testified that the

February 10, 1989, incident wasnot the first time that McQuiston hadhad sexual intercourse with her. Shetestified that McQuiston hadbegun sexual advances toward her whenshewasnine years old. Heidi stated that when she reached the age of fourteen she discovered through movies shown at health class that what her father wasdoing to her wasnot normal. Thereafter she began to resist McQuiston's advances, but whensheresisted her father, she
wasbeaten. Heidi testified that she was beaten so many times for resisting McQuiston that she could not remember them all and she could not estimate howmany incidents of sexual intercourse had occurred. She also testified there were times when her father would beat her and then proceed to have sex with her. The incidents of intercourse occurred about two or three times aweek, but gradually decreased to the point that in February, 1989, McQuiston washaving sexwith Heidi approximately once aweek. The February 10, 1989, incident was the last time Heidi had sexual contact with her father. On Heidi's cross-examination, defense counsel asked her specific questions about the beatings and elicited testimony concerning anincident in Salem, Oregon, in the early 1980s when McQuiston had hit Heidi for calling him apig. Heidi's mother confirmed the Oregon beating. WhenJackie wasasked by the State to describe the facts surrounding the beating, she said that when

4Heidi brought McQuiston acup of coffee hebelched and she called

him apig. Jackie testified that McQuiston "went crazy" andbeat Heidi. Defense counsel did not object to anyof Jackie's testimony concerning the Oregon beating. Jackie also testified that there
were at least twenty times when she returned home from work and Heidi would have ablack eye or afat lip. McQuiston testified that he had hit Heidi only twice and denied any sexual contact between himself and Heidi. Hestated that hebelieved hehad treated Heidi "like adaughter" and that whenhehadhit her, it was"corrective." McQuiston testified that hefirst discovered that Heidi waspregnant when hewas released from jail in Kalispell. Heclaimed that Heidi, Jackie, and her brother hadaccused him of the crimes because they were jealous of his current financial status. McQuiston testified that he was remarried, hadtwo children, hadpaid for his vehicles, madeabout $65 aday and had money in his pocket. Hetestified on direct examination that hewas "way better off" than hehad been when he
wasmarried to Jackie. On cross-examination, the County Attorney asked McQuiston about an existing court-ordered restitution requirement in an unrelated action. McQuiston testified that hehadbeen ordered to pay $10,100 in increments of $100per month andadmitted hehadnot madeany of the monthly payments for ayear. Whenasked if hehad enough money to pay the restitution payments, hestated hedid but that hehad spent the money onother items. Defense counsel did

5not object to any of the testimony regarding the restitution

requirement and there was no evidence submitted as to the underlying crime for which restitution hadbeen ordered. Thejury found McQuiston guilty of sexual intercourse without consent andincest. This appeal followed. ISSUE 1 Did the District Court err in allowing testimony regarding other acts committed byMcQuiston? McQuiston argues that the State exceeded the scope of its pretrial notice regarding evidence of other acts which it intended to introduce at trial. McQuiston contends that when the State offered evidence concerning the Oregon beating incident and the restitution requirement, it exceeded the scope of its intended use of alleged other acts. McQuiston argues that these two past acts
were unrelated to the crime for which hewascharged and that the prejudicial impact of admitting them far outweighed anyprobative value they may have had. Furthermore, McQuiston relies onState v. Matt (19911, 249Mont. 136, 814P.Zd 52, andState v. Just (1979), 184Mont. 262, 602P.2d 957, to argue that the District Court did not properly admonish the jury prior to admitting the evidence. TheState argues that the Oregon beating incident wasproperly admitted as going to the resgestae of the rape and incest charges. The State claims that even though the Oregon beating did not involve sexual contact, it was sufficiently similar to the other beatings that Heidi had received and therefore was properly

6admitted to show the long history of McQuiston's intimidation and

domination of Heidi. The State further notes that since the testimony was initially elicited by defense counsel, no error should be charged to the District Court or to the State for its admission. TheState argues that the purpose of introducing the evidence concerning the restitution requirement was to inquire into McQuiston's financial status in aneffort to rebut or impeach his prior testimony that he was financially well off. The State maintains that the District Court properly admonished the jury before Heidi testified concerning the manyyears ofprior abuse and that the court wasnot required to admonish the jury again prior to receiving testimony concerning the Oregon beating andthe Kalispell restitution order. Wehave stated that district courts have broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the court's determination will not beoverturned. State v. Pace (1995), 272 Mont. 464, 467, 901P.2d 557, 559 (citing State v. Keys (1993), 258 Mont. 311, 314, 852P.2d 621, 623). Wefirst address the Oregon beating incident. In Cline v. Durden (lPPO), 246Mont. 154, 803P.2d 1077, this Court held that counsel, byinquiring into aForest Service ranger's report for the first time on cross-examination, opened the door for further inquiry onredirect and effectively overcame his ownobjection to

7matters contained therein. Cline -I 803P.2d at 1081. Likewise, in the present case McQuiston elicited the circumstances surrounding the Oregon beating onHeidi's cross-examination andthe matter was only revisited by the State onits redirect examination of Heidi. andits direct examination of Jackie. Thus, the District Court did not err in admitting the evidence of the Oregon beating incident. With respect to the evidence related to McQuiston's restitution requirement, we determine that the testimony was elicited bythe State oncross-examination in aneffort to impeach McQuiston's prior testimony that he was financially well off. McQuiston brought uphis financial status ondirect examination. Wehave held that character evidence may be rebutted through impeachment without Just procedures. & State v. Baker (1991), 249Mont. 156, 159, 815P.Zd 587, 589. Theevidence introduced by the State concerning McQuiston's outstanding restitution payments
wasproperly admitted to impeach his prior testimony. Finally, we address the adequacy of the District Court's admonition to the jury. The record indicates that prior to accepting the evidence of other acts and prior to jury deliberation, the District Court admonished the jury that the evidence was not being admitted to prove the character of the defendant in order to showheacted in conformity therewith. The court stated that: The only purpose of admitting this evidence is to show, one, proof of lack of consent of the victim; two, proof of motive of the Defendant to commit the crimes charged herein; and three, proof of a common scheme or plan to
8commit the offenses charged herein; and four, proof of

identity ofthe Defendant. Youmaynot usethat evidence for any other purpose. This Court has previously held that Just does not require an admonition each time prior acts evidence is received. State v. Keefe (1988), 232Mont. 258, 268, 759P.2d 128, 134 (citing State

v. Tecca (1986), 220 Mont. 168, 174, 714 P.2d 136, 140). We conclude that in this case, the District Court's admonition was given prior to Heidi's description of the many years of sexual abuse andbeatings andthat the court met the requirement of §46- 16-401(1), MCA,which required it to give cautionary instructions
asrequired during the course of the trial. In conclusion, wedetermine that the District Court did not abuse its discretion or otherwise err in admitting evidence of other acts, including the Oregon beating incident andMcQuiston's outstanding restitution payments. ISSUE 2 Do McQuiston's convictions for sexual intercourse without consent and incest violate double jeopardy protections? McQuiston argues that the same conduct formed the "factual predicate" for both offenses charged against him since both were based on sexual intercourse between himself and Heidi. Thus, McQuiston claims the District Court should have dismissed the charge of sexual intercourse without consent.
wereview conclusions of lawto determine whether the district court 's interpretation of the law was correct. State v.

9Christensen (1994), 265Mont. 374, 374-75, 877P.2d 468, 469. We

have recently stated that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three distinct abuses: (1) asecond prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson (Mont. 1996), 910P.2d 247, 250, 53St. Rep. 50, 51. TheDouble Jeopardy Clause has been madeapplicable to the states through the Fourteenth Amendment. Nelson, 910P.2d
at 250 (citing Benton v. Maryland (1969), 395U.S. 784, 89S. Ct. 2056, 23L. Ed. 2d 707; State v. Cole (19871, 226 Mont. 377, 744 P.2d 526). McQuiston argues that his convictions of both sexual intercourse without consent and incest constitute multiple punishments for the same offense. This Court has employed the "same elements” test set forth in Blockburger v. United States (1932), 284U.S. 299, 52S. Ct. 180, 76L. Ed. 306, to determine whether adefendant can becharged and convicted of violating two statutes for the same act or transaction. See State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299; State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339; State v. Clawson (1989), 239Mont. 413, 781P.2d 267; State v. Long (1986), 223Mont. 502, 726P.Zd 1364. The Blockburqer test states: The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test tobeapplied todetermine whether there are two offenses or only one, is whether
10each provision requires proof of afact which the other

does not. Blockburger, 284U.S. at 304. The Blockburqer test is atest of statutory construction to determine whether the legislature intended the sameconduct to be punishable under two criminal provisions. Crowder, 810 P.2d at 305. TheBlockburoer test focuses onthe proof necessary to prove the statutory elements of each offense, rather than onthe actual evidence to be presented at trial. Crowder, 810 P.2d at 305 (citing Illinois v. Vitale (1980), 447 U.S. 410, 416, 100 S. Ct. 2260, 2265, 65L. Ed. 2d228, 235). If each statute requires proof of a fact that the other does not, the Blockburqer test is satisfied, notwithstanding there maybe asubstantial overlap in the proof offered to establish the crimes. Iannelli v. United States (19751, 420U.S. 770, 785n.17, 95S. Ct. 1284, 1294, 43L. Ed. 2d616, 627. A comparison of the two statutes for which McQuiston was convicted reveals separate and distinct elements for each crime. Sexual intercourse without consent requires proof that aperson knowingly has sexual intercourse without consent with aperson of the opposite sex. Section 45-5-503, MCA(1987). Incest requires proof that aperson knowingly marries, cohabits with, has sexual intercourse or sexual contact with an ancestor, adescendant, a brother or sister, or any stepson or stepdaughter. Section 45-5-507, MCA(1987).

11Sexual intercourse is prohibited under the incest statute only

if the perpetrator andvictim are related. Thus, the requirement in the incest statute that the parties be related is an element that is not included in the sexual intercourse without consent statute. Furthermore, to prove incest it is not necessary under the circumstances of this case that sexual intercourse without consent beproven. Sexual contact alone is sufficient Lack of consent is anelement of sexual intercourse without consent but not, under the circumstances, an element of incest. Theincest statute only allows consent to beraised asadefense if the victim is astepson or stepdaughter eighteen years of age or older. In the present case, Heidi was McQuiston's adopted daughter. Montana considers anadoptive father to beaparent, not
astepparent. See540-8-103(g), MCA(1987). Since McQuiston was Heidi's adoptive father, consent wasnot anissue with the incest charge. The two charges contain distinct elements and each requires proof of facts which the other does not. In State v. Sor-Lokken (19911, 247Mont. 343, 805P.2d 1367, this Court held that the defendant's convictions of both sexual assault and incest did not violate double jeopardy protections. Sor-Lokken, 805P.2d at 1373. Werelied onthe fact that the State needed to prove lack of consent for the sexual assault charge, while lack of consent was not an element which required proof for the incest charge. Sor-Lokken, 805P.2d at 1373. InSor-Lokken we also distinguished State v. Hall (1986), 224Mont. 187, 728 P.2d

121339, rev’donotherpunds (1987), 481 U.S. 400, 107S. Ct. 1825, 95L.

Ed. 2d 354, by noting that the victim was the defendant's twelve-year-old stepdaughter andtherefore lack of consent wasnot
arequired element for the sexual assault charge. Sor-Lokken, 805 P.2d at 1373. Thus, McQuiston's reliance onHall in the present
case is misplaced since lack of consent was anelement of proof required for his conviction of sexual intercourse without consent due to Heidi's ageat the time the incident occurred. McQuiston goes ontoassert that the Blockburger test does not work well in the context of this case. He instead relies on Montana's double jeopardy statute, §46-11-410, MCA, previously codified at 5 46-11-502, MCA (1987). McQuiston claims that $446-11-410121 (a), MCA,which provides that adefendant maynot be convicted of more than one offense if "one offense is included in the other," whenread in conjunction with §46-l-202(8), MCA,which defines "included offense" provides broader protection than that afforded bythe Blockburqer test. McQuiston also relies on§46-ll-410(2) cd), MCA,to argue that
adefendant maynot beconvicted of more than oneoffense if "the offenses differ only in that oneis defined to prohibit aspecific instance of the conduct." Heclaims that the general statute, § 45-5-503, MCA,prohibits sexual intercourse without consent, while the more specific statute, §45-5-507, MCA,prohibits such conduct with one's daughter.

13We are not persuaded by McQuiston's interpretation of

S46-11-410, MCA. Incest is not an "included offense" of sexual intercourse without consent, nor, under the facts of this case, is it a"specific instance" of the conduct proscribed by 545-5-503, MCA. Incest is adistinct andwholly separate offense from sexual intercourse without consent and each offense requires proof of distinct elements that the other does not. Wetherefore hold that the District Court correctly interpreted the law and did not violate double jeopardy protections whenit convicted McQuiston of sexual intercourse without consent andincest. ISSUE 3 Did the District Court err in sentencing McQuiston? OnMarch 13, 1995, the District Court sentenced McQuiston in open court to aterm of fifteen years in the state prison, with five years suspended, for the conviction of sexual intercourse without consent, and to aterm of fifteen years in the state prison, with five years suspended, for the incest conviction. On March 14, 1995, the court entered its written judgment and sentencing order indicating that it was imposing a sentence of thirty years in prison, with the last five years suspended, for each of the two offenses. The two sentences were ordered to be served consecutively and the court designated McQuiston as a persistent felony offender andadangerous offender. OnMarch 31, 1995, the District Court entered anamendment to its judgment stating it had reviewed the transcript of the

14sentencing hearing and found that its order was inconsistent with

the sentence imposed in opencourt. Thecourt amended the sentence to twenty-two and one-half years in prison, with five years suspended, for each of the two offenses. The court ordered the sentences to run consecutively for atotal sentence of forty-five years in prison, with ten years suspended. In its memorandum to the amended judgment, the court stated that:

The Court mistakenly treated the persistent felony designation as an enhancement tool. That designation apparently does not enhance the sentence, but simply affords the Court the right to impose a sentence in exces.s of the maximum allowed for the crimes for which a Defendant is convicted. State v. Fitzpatrick, 247Mont. 206. In this Court's view, it['ls all a game of semantics. But in any case this amended sentence conforms with the Court's intent. McQuiston argues that the District court Is sentence constitutes anexp.sl.facto violation of the law because it sentenced him onthe incest conviction pursuant to the statute in effect at the time of the sentencing hearing, rather than the statute in effect at the time the offense occurred. Furthermore, McQuiston contends that the District Court erred in designating him a persistent felony offender and in sentencing him without first receiving asexual offender evaluation. Section 45-5-507(3), MCA (1987), provides that a person convicted of incest shall beimprisoned for anyterm not to exceed ten years. This statute wasamended in 1991 and the maximum term of imprisonment was increased to twenty years. Section 45-5-507,

15MCA (1991). The 1987 version of the Code applies to this case

since the offenses charged occurred in February 1989. However, when adefendant has been designated apersistent felony offender, it is 5 46-18-502, MCA, that determines the maximum length of the sentence, not the statute governing the underlying offense. Wehave stated that the persistent felony offender provision "replace[sl the maximum sentence prescribed for the offense. It is not asentence in addition to the sentence for the offense." State v. Fitzpatrick (1991), 247Mont. 206, 208, 805 P.2d 584, 586. Section 46-18-502(l), MCA, provides that "a persistent felony offender shall beimprisoned in the state prison for aterm of not less than 5years or more than 100years." In the present case, the District court stated that McQuiston's sentence reflected his status as apersistent felony offender. Thus, the court's sentence of twenty-two and one-half years for the incest conviction was well within the loo-year maximum sentence allowed bythe persistent felony offender statute. Wetherefore conclude the District Court did not err in sentencing McQuiston, nor did it apply the law expostfacto. Section 46-13-108(l), MCA, requires the prosecution to give notice at or before the omnibus hearing of its intent to treat the accused as apersistent felony offender. Section 46-13-108(5), MCA, requires that notice must befiled andsealed until the time of trial or until aplea of guilty is given bythe defendant. The purpose for providing such notice is to give the defendant an

16opportunity tofile anobjection tothe criminal record relied upon

in the notice and to hold a hearing should there be any such objection. See 546-13-108(3), (4), MCA. OnMay3, 1994, the State served defense counsel with notice that pursuant to §§46-18-501 and -502, MCA, it intended to seek increased punishment for McQuiston asapersistent felony offender. McQuiston hadbeen convicted oftwoprior felonies, onein 1982 and
onein 1991. Thenotice, however, wasnot filed with the District Court until October 11, 1994, after the trial was concluded. McQuiston argues that timely filing of the notice is a jurisdictional prerequisite andthus, failure to dosoconstitutes reversible error. In State v. Madera (19831, 206 Mont. 140, 670 P.2d 552, we interpreted the former version of the statute, 546-18-503, MCA, which required two notices. First, the State had to give the defense notice of its intent to seek treatment of the accused asa persistent felony offender prior to entry of a guilty plea or before trial. A second notice had to be filed with the court before sentencing. In Madera the defendant had received written notice before trial but claimed the second notice wasdeficient. Thetrial court hadset the date for the sentencing hearing at the
same time it received a motion to designate the defendant a persistent felony offender. In affirming the district court, we stated that the first notice to the defense was jurisdictional while the second notice to the court was simply procedural.

17Madera, 670 P.Zd at 560. Weheld that the defendant was not

prejudiced by the failure to file the second notice prior to setting the date for the sentencing hearing since hehadsufficient notice of the charge which would beused against him. Madera, 670 P.2d at 560. Section 46-20-701(l), MCA,provides that "inlo cause shall be reversed byreason of any error committed bythe trial court

. .. unless the record shows that the error wasprejudicial." Wehave held that prejudice will not bepresumed, but must appear from a fact established in the record or from the denial or invasion of a substantial right from which the law imputes prejudice. State v. Arlington (1994), 265Mont. 127, 150, 875P.Zd 307, 321; State v. Newman (1990), 242Mont. 315, 325, 790P.2d 971, 977. In the present case, McQuiston wassent notice of the State's intent to seek persistent felony status over amonth prior to the omnibus hearing and five months before trial. Furthermore, the notice was filed with the District Court five months prior to sentencing. Weconclude that McQuiston wasnot prejudiced bythe State's failure to file notice of its intent to treat McQuiston as
apersistent felony offender prior to trial. Thus, wehold that the District Court did not err in designating McQuiston a persistent felony offender. Prior to sentencing, the District Court ordered apresentence investigation report and ordered that McQuiston undergo a sex offender evaluation. Nosex offender evaluation hadbeen prepared

18at the time of sentencing. McQuiston alleges that the District

court did not have the discretion to sentence him without considering acompleted presentence investigation containing the evaluation and recommendation required by §46-18-111, MCA. At the sentencing hearing, McQuiston's probation officer testified that sex offender clinics in Helena andBozeman hadbeen contacted andhad stated that because McQuiston was in denial, an evaluation would beof nobenefit. AMissoula doctor indicated he. would be available for an evaluation but, according to the probation officer, McQuiston was unavailable due to his incarceration as a result of the revocation of a previous probationary sentence. Section 46-18-111, MCA(19871, provides that: No defendant convicted of an offense under 45-5-502 through 45-5-505, 45-S-507, or 45-5-625 against avictim who was less than 16years old when the offense was committed may be sentenced or otherwise disposed of before awritten report of investigation by aprobation officer is presented to andconsidered bythe court. The investigation must include anevaluation ofthe defendant and a recommendation as to treatment by a person qualified byprofessional experience. Heidi was nineteen years old when the offenses were committed. Thus, the sex offender evaluation wasnot mandatory. Even though the District Court ordered that such anevaluation be conducted, the court stated at the sentencing hearing that: Idon't think I'm going to require him toparticipate in it. He's got enough facing him as it is. And if he's still in denial, it won't doany good anyway.

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### wehave stated that this Court will not disturb adistrict

court's sentencing decision absent ashowing that thecourt abused its discretion. State v. Blanchard (19951, 270Mont. 11, 15, 889 P.Zd 1180, 1182. Therecord is clear that McQuiston denied the crimes for which hewasconvicted, andtherefore, sex offender treatment would beineffective. Under those circumstances, we conclude that the District Court did not abuse its discretion in sentencing McQuiston without considering asexoffender evaluation. Affirmed 

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