DA 06-0131 

### IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 227

STATE OF MONTANA, Plaintiff and Respondent,

v. RUSTY ROGERS, Defendant and Appellant.

APPEAL FROM: District Court of th e Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 05-35, Honorable Holly Brown, Presiding Judge

COUNSEL OF RECORD: For Appellant: Suzanne C. Marshall, Marshall Law Firm, P.C., Bozeman, Montana For Respondent: Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney Gene ral, Helena, Montana Marty Lambert, County Attorn ey; Ashley Harrington, Deputy County Attorney, Bozeman, Montana

Submitted on Briefs: February 7, 2007 Decided: September 11, 2007

Filed:

__________________________________________ ClerkJustice Jim Rice delivered th e Opinion of the Court. ¶1 Appellant Rusty Rogers (Rogers) was char ged with two counts of felony sexual assault upon two child victims, in violation of § 45-5-502, MCA. The two children, L.W. and E.K., were four and six years old at th e time of the assaults and were children of friends of the defendant. Rogers appeals his conviction by jury in the Eighteenth Judicial District Court, Gallatin County. We affirm. ¶2 Rogers raises the following issues on appeal: ¶3 1. Did the District Court abuse its di scretion by denying Rogers’ challenge for

cause of Juror Welter? ¶4 2. Did the District Court err when it denied Rogers’ motion for a directed

verdict? ¶5 3. Did the District Court err by givi ng the jury a “dyn amite” instruction? ¶6 4. Did the District Court impose an illegal sentence by failing to apply the statutory exception to the mandatory mini mum sentence, and by sentencing Rogers based upon his lack of participation in a court-ordered psycho sexual evaluation?

FACTUAL AND PROCED URAL BACKGROUND ¶7 On February 14, 2005, the State of Montana filed an information charging Rogers with two counts of sexual assault upon two child victims, L.W. and E.K., in violation of § 45-5-502, MCA. The District Court conducte d a jury trial on October 18 and 19, 2005, after which the ju ry found Rogers guilty of both counts. On appeal, Rogers takes issue with certain aspects of his trial, including voir di re proceedings, his motion for

2a directed verdict, an instruction given to the jury during their deliberations, and his sentencing. ¶8 During voir dire proceedings, prospectiv e juror Bennie Welter revealed that it

would be difficult for him to be an objective juror given that sexual assault of children was at issue. The following dialogue took place between Juror We lter and counsel for

the State: MS. HARRINGTON: All right. Let’s get to the issues in the case. This defendant has been charged with two counts of Sexual Assault alleged to have been committed on two sepa rate girls. . . . Just knowing that this trial is going to involve issues of sexual assault upon a child , is there anyone who feels they cannot sit as a juror? Yes, sir? JUROR WELTER: I have an 11-year ol d daughter of my own and I don’t, for lack of a better description, prefer to sit in that chair. I can’t be objective.

MS. HARRINGTON: There are a lot of emotions associated with that— that first confrontation with the issue of a child being molested. There are a lot of jurors here, prospective jurors who have kids. As a matter of fact, everybody with kids un der the age of 25, why don’t you throw up your hands. Okay, almost ever ybody. Do you think that part of this process in determining whether or not the St ate can prove this case beyond a reasonable doubt should involve parents? JUROR WELTER: I really don’t see how it can go without it. MS. HARRINGTON: Okay. And that th e goal of the process is, if proven guilty, convict him, keep hi m from doing it again, right?

JUROR WELTER: Yeah. MS. HARRINGTON: But if we don’t, to keep someb ody who has been accused, maybe wrongfully, from being convict ed at a criminal trial. Is that fair? . . . But the real question is, did it happen. Would you agree that that is a conclusion that you can’t come to until you’ve heard all the evidence in the case?

3JUROR WELTER: That would be true, yeah. MS. HARRINGTON: And until you hear that evidence fro m the mouths of the witnesses on that witness stand, M r. Rogers is presumed innocent of the charges against him. JUROR WELTER: Supposed to be. MS. HARRINGTON: Supposed to be. You have a—a gut feeling otherwise? JUROR WELTER: Well, just the fact that kids are involved.

. . . . MS. HARRINGTON: All right. Let’s get back to the impartiality issue. Do you think that just because the defe ndant is sitting there, that he’s guilty of something?

JUROR WELTER: No. ¶9 After the State had completed its voir dire, defense counsel questioned Juror

Welter as follows: MS. MARSHALL: Now, Mr. Welter, I’m going to come back to you. You talked about having a daughter and how th is is an emotional thing for you. Tell me what kinds of emotional compon ents or emotional things you have with that. Tell me what about this ca se, what kind of ge ts your hackles up? JUROR WELTER: My firs t thought when I heard what the case entails is—was my daughter and what I would have done had my daughter been in the same situation.

MS. MARSHALL: And I’m not looking for the reac tion so much as if your daughter had come to you and said, somebody touched me inappropriately in my private area, what would you want to know, what would you do?

JUROR WELTER: I would want to kno w who and where this individual was. MS. MARSHALL: And how would you investigate that?

4JUROR WELTER: Confrontation.

. . . . MS. MARSHALL: In light of your f eelings with your daughter, and it sounds like you have str ong feelings about this particular subject, do you think that you could be fair to [Roger s] if you were chos en to be on the jury?

JUROR WELTER: I don’t know. MS. MARSHALL: Do you think th at—have you read about sexual assault?

JUROR WELTER: Somewhat. MS. MARSHALL: How long have you felt strongly about this issue? JUROR WELTER: Since my daughter was born. MS. MARSHALL: And are you likely to change your mind within the next week?

JUROR WELTER: I don’t know. I don’t think so. MS. MARSHALL: And if the judge tells you, to be a juror on this case, you have to leave your opinion about your own daughter or your own circumstances at the door, and complete ly abandon it for the duration of the trial, you could—even if you could do it, it’d be very difficult, wouldn’t it? JUROR WELTER: It’d be pretty difficult, yes. MS. MARSHALL: And you could bring yourself to decide that perhaps [Rogers] didn’t do these acts, but it’d be really hard? JUROR WELTER: Anything’s possible, yes. MS. MARSHALL: So, you’d start out wanting to think that, yeah, he probably did this? JUROR WELTER: More than likely.

5MS. MARSHALL: And deciding against that would be pretty hard for you, wouldn’t it? JUROR WELTER: It depends on what the case proves. Counsel for Rogers then moved the District C ourt to dismiss Juror Welter for cause. The State objected, and the District Court agreed th at defense counsel had to do more to prove bias, since the totality of Ju ror Welter’s answers both to the State’s questioning and

defense counsel’s did not indicate that Juror Welter would be unable to follow the District Court’s instructions regarding the presumption of innocence. Defense counsel

concluded her voir dire of Juror Welter with the following exchange: MS. MARSHALL: Do you th ink that your ability to sit on the jury would be impaired at all, in any way, by your belief abou t sexual assault crimes? JUROR WELTER: At this point, I don’t think so. Defense counsel then moved on to questioni ng other jurors, and s ubsequently used a peremptory challenge to re move Juror Welter. Defense counsel used all of her peremptory challenges. ¶10 The evidence produced at trial establishe d that Maggie and Dan H. are married and have a son, I.H., and two daughters, E.K. and L.W. Accordin g to trial testimony, Rogers would visit Maggie an d Dan’s home approximately once a month, and often sat on the couch in the living room with the girls, tickling them and holding them on his lap, while Maggie and Dan were oc cupied with other chores. ¶11 On January 19, 2005, Rogers was in th e living room with Dan while E.K. and L.W., then four and six year s old, were eating dinner in the kitchen with Maggie. Without any prompting or inquiry, E.K. stood up and told Maggie, “Rusty does this,” and

6stuck her hand inside her pant s, touching her vaginal area. When Maggie asked E.K. to explain what Rogers had done, E.K. reiterated that “Rusty touches me and [L.W.] on our potty,” and put her hand in her pants to dem onstrate again. Later that evening after Rogers had left, L.W. also confirmed to Ma ggie that Rogers had put his hand in her and E.K.’s pants. Both girls indicated that R ogers had done so multip le times. Maggie then contacted the Bozeman Police Department. ¶12 On January 25, 2005, Bozeman Police Detective Brandon Olson separately interviewed Maggie, E.K., and L.W. Detec tive Olson videotaped his interviews with E.K. and L.W., and allowed the girls to use gingerbread drawings to demonstrate what Rogers had done to them. Detective Olson then conducte d a video recorded interview with Rogers, during which Roge rs stated that his hand might have accidentally slipped between the girls’ legs and landed on their cr otch. However, Rogers denied that he had groped the children or had a ny interest in young girls. ¶13 Both E.K. and L.W. testifie d at trial. E.K. identif ied Rogers from the witness stand and stated that he had, on multiple occasions, touched the place that “pee” came from. L.W. also identified Rogers and stated that he had touched he r and her sister “in a private spot” three times, which she identified as the place that pe e comes out when she goes to the bathroom. Both gi rls testified that when Rogers touched them, his hand was

under their clothes and underwear. ¶14 At the close of the State’s case-in-chi ef, Rogers’ counsel moved the District

Court for a directed verdict. Defense counsel argued that the State failed to establish that Rogers had touched the girls for the purpose of sexual gratification, and therefore failed

7to prove that element of the sexual assault charge. The St ate opposed the motion, arguing

that sufficient eviden ce was presented from which the ju ry could infer Rogers’ mental state. The District Court denied Rogers’ mo tion for a directed verdict, and the defense presented its case-in-chief. ¶15 After the jury convicted Rogers of both c ounts, the District Court ordered Rogers to undergo a psychosexual eval uation prior to sentencing, as required by § 46-18-111(1), MCA. Fred Lemons (Lemons) conducted th e psychosexual evaluation, during which Rogers repeatedly refused to answer qu estions, invoking his Fi fth Amendment right against self-incrimination. Rogers was only minimally cooperative when asked nonincriminating questions as we ll. Lemons ultimately conclu ded there were no treatment options available to Rogers within the community, and recommended that Rogers complete Phases I and II of the sex offend er program at Montana State Prison. ¶16 The District Court conducted a senten cing hearing on January 24, 2006.

Defense counsel recommended the District Co urt impose a ten-year commitment to the Department of Corrections, with Rogers’ entire sentence deferred because Lemons characterized Rogers as a Level I, low risk offender. The State recommended a sentence of twenty years in prison with ten years suspended based, in part, on Lemons’ assessment that Rogers was not amenable to treatment in a community setting. The District Court sentenced Rogers to tw enty-year concurrent prison term s on both counts, with ten years suspended. ¶17 The District Court based its sentence on a number of fact ors, including the serious nature of Rogers’ crimes, the ages and number of the victims involved, the

8considerations submitted in tes timony at the sentencing hear ing, the State’s and defense counsel’s recommendations, the presentenc e investigation report, and Lemons’ psychosexual evaluation of Roge rs. The District Court u ltimately concluded that the safety of the victims and the community, as well as the lack of treatment options available in the community, required that Rogers be incarcerated in Montana State

Prison.

STANDARDS OF REVIEW ¶18 We review denial of a challenge to dismiss a juror for cause for abuse of

discretion. State v. Richeson , 2004 MT 113, ¶ 14 , 321 Mont. 126, ¶ 14, 89 P.3d 958, ¶ 14. “Abuse of discretion occurs if a court fails to excuse a prosp ective juror if actual bias is discovered during voir dire.” Richeson , ¶ 16 (citation omitted). ¶19 We review denial of a motion fo r a directed verdict of acquittal de novo

. State v.

Swann , 2007 MT 126, ¶ 19, 337 Mo nt. 326, ¶ 19, 160 P.3d 511, ¶ 19. “A directed verdict is only appropriate if, viewing the evidence in a li ght most favorable to the prosecution, there is no evidence upon which a rational trier of fact could have found the essential

elements of the crime be yond a reasonable doubt.” Swann , ¶ 16 (citations omitted). ¶20 We review a criminal sentence for legality only. Thus, our review is confined to whether the sentence is within the parameters provided by statute. State v. Legg , 2004 MT 26, ¶ 24, 319 Mont. 362 , ¶ 24, 84 P.3d 648, ¶ 24 (citation omitted). When the issue on appeal concerns whethe r the defendant’s constitutiona l rights were violated at sentencing, the question is a ma tter of law which we review de novo

. Legg , ¶ 24.

9DISCUSSION ¶21 Did the District Court abuse its discre tion by denying Rogers’ challenge of Juror Welter for cause? ¶22 Rogers asserts that the District Court erred by denying his challenge of Juror Welter for cause, and points to several of Welter’s responses during voir dire which

indicated that Welter was concerned whether he could be impartial. The State argues that mere hesitancy or concern ab out one’s ability to be impar tial does not in and of itself render a potential juror subject to a challenge for cause. We agree that Juror Welter’s responses as a whole establish that he neither had a state of mind indicating actual bias nor a substantial impairment renderi ng him unable to act impartially. ¶23 Dismissal for cause is favored when a serious question aris es about a juror’s ability to be fair and impartial. State v. Golie , 2006 MT 91, ¶ 8, 332 Mont. 69, ¶ 8, 134 P.3d 95, ¶ 8 (citing Richeson , ¶ 14). In determining whethe r to dismiss a juror for cause, district courts are guided by § 46-16-115(2), MCA. One sp ecified basis for dismissal occurs where a juror has “a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartia lity and without prejudice to the substantial rights of either party.” S ection 46-16-115(2)(j), MCA. A challenge for cause under § 46-16-115(2)(j ), MCA, must be analyzed with reference to the aforementioned statutory la nguage and the totality of the circumstances. State v. Heath , 2004 MT 58, ¶ 16, 320 Mont. 21 1, ¶ 16, 89 P.3d 947, ¶ 16. ¶24 We recently held in State v. Heath , under similar circumstan ces, that the District

Court did not abuse its discre tion when it denied two cha llenges for cause, thereby

10requiring the defendant to use his peremptory challenges. In that case, the defendant was charged with sexual intercourse without consent. During voi r dire, one of the prospective jurors, Juror Caldwell, stated that she had volunteered as a rape survivor advocate in college, and also that her ex -boyfriend had stalked her. Heath , ¶ 17. Upon questioning by defense counsel, Caldwell ad mitted that another juror probably could be more impartial, and that she might not be the best juro r for the case. Heath , ¶ 25. However, questioning also revealed that Ca ldwell would be able to look at the facts objectively, that her experience would not affect her judgment , and that she could set aside her prior experiences. Heath , ¶ 25. Moreover, Caldwell’s responses indicated that her familiarity with sex crime victims was not unique, and th at she could follow the law as given to her by the district court. Heath , ¶¶ 27, 29. In addition, because Caldwell’s stalking experience had been classified as a “property offense,” a nd was thus dissimilar from the rape charges that would be presented at trial, we held there was insu fficient evidence that Caldwell had an improper state of mind or was biased. Heath , ¶¶ 34-35. ¶25 Similarly, in the present case Juror Welte r ultimately demonstr ated that he did not have an improper state of mind, and no se rious question existed in that regard. Juror Welter’s feelings regarding sexual assault ar e common among parents, and the fact that he had children of his own was by no mean s unique among other prospective jurors. Despite his initial response, Juror Welter’s s ubsequent responses i ndicated that he was unbiased and impartial. For example, Juro r Welter acknowledged that he would have to

hear all of the evidence befo re he could conclude that Ro gers was guilty. Juror Welter also admitted that just be cause Rogers was the defendant , Rogers was not necessarily

11guilty of something, and also acknowledged th at kids are more sus ceptible to suggestion

than adults and must be scrutinized. And fi nally, Juror Welter ultima tely recognized that his ability to sit on the jury would not be impaired “at all, in any way, by [his] belief

about sexual assault crimes.” ¶26 Under the totality of the circumstances, Juror Welter’s responses indicated neither a “state of mind” affecting his ability to be fair and impartial, nor a “serious question” in that regard. Accordingly, we ho ld that the District Court did not abuse its discretion in denying Rogers’ motion to remove Juror Welter for cause. ¶27 Did the District Court err when it denied Rogers’ motion for a directed verdict? ¶28 A person commits the offense of sexual a ssault if he knowingly subjects another person to any sexual contact without consen t. Section 45-5-502 (1), MCA. “Sexual contact” is defined as “touching of the sexual or other intimate parts of the person of another . . . in order to knowingly or purposely . . . arouse or gratify the sexual response or desire of either party.” Section 45-2-101(67), MCA. Any consent to sexual contact is

ineffective if the victim is under fourteen a nd the offender is three or more years older

than the victim. Secti on 45-5-502(5)(b), MCA. ¶29 On appeal, Rogers argues that the Distri ct Court erred when it denied his motion for a directed verdict. Rogers argues that the State failed to pres ent sufficient evidence

that he touched E.K. and L. W. for the purpose of arousi ng or gratifying his sexual response or desire. Rogers claims the only evidence presented regarding his mental state was the video statement he ga ve to the Bozeman Police Depa rtment in which he denied having any sexual interest in girls, and L.W. ’s statement to Detective Olson that Rogers’

12lap felt “soft” when she sat in it, implying th at Rogers did not have an erection. Because the State did not present direct conflicting ev idence regarding his mental state, Rogers argues the evidence show ed that he did not receive any gratification from touching the girls. ¶30 This Court has previously held that the State need not prove direct evidence of arousal, or intent to be aroused, in order to meet its burden of proving the “sexual contact” element of sexual assault. “[I]t is well-settled that the jury may infer intent of

sexual arousal from the defendant’s acts.” State v. Skinner , 2007 MT 175, ¶ 24, 338 Mont. 197, ¶ 24, 163 P.3d 399, ¶ 24 (citation omitted). In Skinner , the defendant claimed the State failed to meet the “intent” prong of “sexual contact” despite proving that he had placed his hand down the back of his elev en-year-old daughter’s underwear while she was asleep. Skinner , ¶ 23. We held that, “while there is no dire ct evidence of arousal, such as an erection, there is sufficient ci rcumstantial evidence fo r the jury to infer arousal, or that the purpose of Skinner’s act was arousal. Skinner was not casually touching T.D. during an ordinary act.” Skinner , ¶ 24. ¶31 Rogers’ argument is indistinguishable. While the State may not have presented direct evidence that Rogers was aroused, a jury could infer that Rogers’ multiple acts of putting his hand inside E.K.’s and L.W.’s underwear was fo r the purpose of arousal. As

in Skinner , Rogers was not casually touching E.K. or L.W. during an ordinary act when,

on more than one occasion with both girls, he placed his hand on their vaginas. Viewing the evidence in a light most favorable to the prosecu tion, there was su fficient evidence upon which a rational trier of fact could have found that Rogers made “sexual contact”

13with E.K. and L.W. Conseq uently, the District Court di d not err in denying Rogers’

motion for a directed verdict. ¶32 Did the District Court err by givi ng the jury a “dynamite” instruction? 1 ¶33 Rogers’ third allegation of error is that the District Court erred when it allegedly instructed the jury, at 10 p.m. on its first day of deliberation, that it would only have an additional half-hour to reach a decision, and if it could not, it would have to reconvene in the morning. Rogers refers this Court to its holding in State v. Randall , 137 Mont. 534, 353 P.2d 1054 (1960), in whic h we held it was erro r for the district court to instruct minority members of a jury to give further c onsideration to the majo rity members’ view, thereby suggesting that the minority members “ought to surrender their own convictions and follow the majority.” Randall , 137 Mont. at 542, 353 P.2d at 1058. According to Rogers, the given instruction had the effect of pressuring any juror not in agreement with the majority to change his or her opinion, so as to avoid inconvenienci ng the jury as a whole. However, we need not reach this issue today. ¶34 As noted by the State, Rogers fails to direct the Court to any record of this deliberation instruction in the transcript or in the District Court’s minutes, and thus has failed to document the issue for appeal. As th e appellant, it is Rogers’ duty to present us

with a record sufficient to enable us to rule on the issue raised. M. R. App. P. 9(a). An

1 A “dynamite” instruction is also called an Allen -type instruction, and is so named for Allen v. U.S. , 164 U.S. 492, 17 S. Ct. 154 (1896 ), in which the Unite d States Supreme Court approved of a deliberation instruction encouraging each juro r to listen with deference to other jurors, and to distrust his own judgment if he found a large majority of the jury taking a different view. Th is Court took the opposite view in State v. Randall , 137 Mont. 534, 353 P.2d 1054 (1960). 14appellant cannot meet the burden of establishi ng error without citations to the record and

to relevant authorities. City of Billings v. Peterson , 2004 MT 232, ¶ 36, 322 Mont. 444, ¶ 36, 97 P.3d 532, ¶ 36; M. R. App. P. 23(a)(4). It is also the appella nt’s duty to ensure that the appendix contains any relevant given or refused jury instruction. M. R. App. P. 25(b)(2). Rogers provides no citations to the reco rd, and we find noth ing in the record supporting Rogers’ contention. ¶35 Rogers’ reply brief indicates that he has filed a motion before the District Court, pursuant to M. R. App. P. 9(f), for the record to be supplemented. However, that request was made to the District Court on September 25, 2006, and th e record is still devoid of the allegedly erroneous instruction. Beca use the record does not support Rogers’ contention, we affirm the District Court. ¶36 Did the District Court impose an illegal se ntence by failing to apply the statutory exception to the mandatory mini mum sentence, and by senten cing Rogers based upon his lack of participation in a court-ordered psychosexual evaluation? ¶37 On appeal, Rogers makes two arguments against the senten ce imposed by the District Court. First, Rogers argues he satis fied the eligibility crite ria for an exception to the mandatory minimum sentencing statute, and therefore shoul d have received a deferred sentence. Second, Rogers argues he had a Fifth Amendment right to decline to participate in the psychosexual evaluation, and that such re fusal should no t have been considered in determining his sentence. We find no error in the court’s sentence.

15I. Mandatory Minimum Sentence Exceptions ¶38 Section 45-5-502(3), MCA, provides for a mandato ry minimum prison sentence of four years, or a maximum of 100 years, upon conviction of sexual assault on a minor. However, § 46-18-222(6), MCA, provides for an exception to that mandatory minimum

sentence if the District Court “determines that treatment of the offender in a local community affords a better opp ortunity for rehabilitation of the offender and for the ultimate protection of the victim and society . . . .” Rogers argues the District Court should have applied this exception becaus e, among other things, Rogers’ history of sexual assault was limited to the present offens es, which he argues were relatively minor, and for which Lemons only classified Rogers as a Level I sex offender. Rogers also points out that none of Lem ons’ conclusions came from the two tests in which Rogers raised his Fifth Amendment right against se lf-incrimination, and from which the State characterized Rogers as uncooperative. Ther efore, Rogers argues, the exception to the mandatory minimum sentence applies to him. ¶39 Despite Rogers’ arguments, this Court has “consistently held that the exceptions set forth at § 46-18-222, MCA, do not apply in cases in which the district court sentences

the offender to more than the minimum sentence.” Legg , ¶ 49 (citations omitted). In other words, the exceptions only apply if the district court is predisposed to sentencing the defendant to the mandatory minimum sentence. State v. Zabawa , 279 Mont. 307, 317, 928 P.2d 151, 157 (1996). In this case, the mandatory minimum sentence was four years imprisonment. Section 46-18-222(3), MC A. The District Court sentenced Rogers to twenty years imprisonment, ten suspended. Thus, the Dist rict Court sentenced Rogers

16to more than the minimum sentence, maki ng the exception for which Rogers argues inapplicable. Moreover, the St ate correctly points out that even if Rogers had received the minimum sentence, he pres ented no evidence that he could be better treated or rehabilitated in the community. In fact, the opposite was true: the District Court accepted Lemons’ conclusion that there were no treatment options available to Rogers within the community. II. Participation in Psychosexual Evaluation ¶40 Rogers’ second argument is that his re fusal to cooperate at the presentence psychosexual evaluation was used against him in violation of the Fifth Amendment. Rogers argues that Lemons recommended, and the District Court imposed, a harsher sentence solely because Rogers refused to ad mit responsibility or express remorse at the psychosexual evaluation. ¶41 Rogers’ assertion is not supported by the record. As a preliminary matter, Rogers’ lack of cooperation was not limited to only those instances in which he could have incriminated himself. Rather, Lemons noted that Rogers was extremely closed and defensive in providing a social and sexual history, and Rogers was only minimally cooperative in completing probation and parole ’s presentence investig ation report. This lack of cooperation does not fall w ithin the Fifth Amendment umbrella. ¶42 In accordance with § 46-18- 115(6), MCA, the District Court articulated the reasons for its sentence. As discussed previ ously, the District Court first noted that the mandatory minimum sentence was four years fo r a violation of § 45-5-502(3), MCA, and that the exception was inapplic able because no treatment options were available within

17the community which would address Rogers’ issu es of sexual abuse. The District Court observed that, contrary to Rogers’ argum ent that Lemons recommended a harsher sentence based solely upon his refusal to incriminate himself, Lemons’ recommendation

for treatment was based on an interview with Rogers, administration of a number of tests and screening tools, and a review of the background information and court documents related to the specific offense. In fact, Le mons did not comment on Rogers’ refusal to respond to questions posed to him during testing, and the District Court correctly noted

that there was “no indication that the failure to complete these tests in any way affected Mr. Lemons [sic] recommendation for treatment.” ¶43 The District Court summarized the reasons for its sentence as follows: The correctional policy to provide an opportunity for rehabilitation and reintegration of a defendant into the community has to be balanced against the issue of public safety. Based on the serious nature of these crimes, the ages and number of vic tims affected, the considerations submitted in the testimony presented at the sent encing hearing, and [sic] the recommendations of the State and De fense Counsel, the Pre-Sentence Investigation Report and the letters a ttached to that Report, the evaluation of Mr. Lemons, and the memoranda pr ovided by Counsel, the Court finds that the safety of the vi ctims and the community re quire that the defendant be incarcerated. Also, in order to prot ect the public safety, as well as to provide for rehabilitation, the Court finds that sex offender treatment has to be required, and it is not available outsi de of the prison in this case. In order to ensure that sex offender treat ment is completed, the defendant will be restricted from parole until Phases I and II of the sex offender treatment program at the prison have been successfully completed . . . .

The District Court’s consider ations in its “Reasons for Sentence” were many, and, notably, did not even referen ce Rogers’ refusal to answer incriminating questions during the psychosexual evaluation. Because nothing in the record supports Rogers’ claim that

his refusal served as a basis fo r his sentence, we decline to address Rogers’ argument that

18the Fifth Amendment permits a defendant to refuse to participat e in a court-ordered psychosexual evaluation. The District Co urt’s sentence was within the parameters provided by statute, and is therefore affirmed.

/S/ JIM RICE

We concur:

/S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ BRIAN MORRIS

Justice James C. Nelson concurs. ¶44 I concur in the Court’s Opinion. I write separately as to the ju ror voir dire issue, Issue 1, only to clarify my vote to affirm. ¶45 All things being equal, I w ould have voted to reverse on this issue. In my view, Welter’s responses quoted in the Court’s Opinion demonstrat ed that he had a state of mind in reference to the case [and to Roge rs] that would prevent him from acting with entire impartiality and without prejudice to Rogers’ substan tial rights. Section 46-16- 115(2)(j), MCA. State v. Golie, 2006 MT 91, ¶ 8, 332 Mont. 69, ¶ 8, 134 P.3d 95, ¶ 8. Moreover, at least from the colloquy quoted, I believe that the voir dire examination did raise a serious question about Welter’s ability to be fair and impartial. State v. Richeson, 2004 MT 113, ¶ 14, 321 Mont . 126, ¶ 14, 89 P.3d 958, ¶ 14.

19¶46 That said, following the trial court’s de nial of defense counsel’s challenge to Welter for cause and the judge’s admonition th at she needed to “establish more”—in light of the fact that the court would be inst ructing the juro rs on, among other things, the presumption of innocence and the State’s bur den of proof—counsel stated to Welter:

Ms. Marshall: I’m going to stick with you. Do you think that your ability to sit on the jury wo uld be impaired at all, in any way, by your belief about sexual assault crimes? Mr. Welter: At this point, I don’t think so. Ms. Marshall: Okay. All right. I’ll pick on somebody else, thank you. [Emphasis added.]

Defense counsel did not therea fter renew her challenge and, ultimately, passed the panel

for cause. ¶47 By determining to “stick with” Welter an d by not renewing her challenge for cause, I conclude that defense counsel withdr ew her challenge. Whether that was a wise decision is not before us. However, I agree with our determination to affirm as to Issue 1 because the challenge for cause was withdrawn.

/S/ JAMES C. NELSON

20