No. 89-108 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSHAWN DREW CLAWSON, 

Defendant and Appellant. 

u 

APPEAL FROM: District Court of the First Judicial Distric$ 

In and for the County of Lewis & Clark, -4 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Paul D. Johnson, Asst. Atty. General, Helena 

Mike McGrath, County Attorney; Carolyn A. Clemens, 

Deputy County Atty., Helena, Montana 

Filed: 

Submitted on Briefs: Aug. 24, 1989 

Decided: October 19, 1989 

P 

I 

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

Defendant, Shawn Drew Clawson, was charged with aggravated kidnapping, aggravated assault, sexual intercourse 

without consent, and attempted deliberate homicide in the 

District Court for the First Judicial District, Lewis and 

Clark County. The aggravated assault charge was dismissed. 

The jury found defendant guilty as charged of the offenses of 

of aggravated kidnapping, sexual intercourse without consent, 

and attempted deliberate homicide. Defendant was sentenced 

to 100 years for aggravated kidnapping, 100 years for attempted deliberate homicide, 40 years for sexual intercourse 

without consent, 100 years as a persistent felony offender, 

and 10 years for the use of a weapon, to run consecutively, 

making a total of 350 years. He was also declared ineligible 

for parole. Defendant appeals. We affirm. 

Defendant presents three issues on appeal: 

1. Did the District Court err in ruling that sexual 

intercourse without consent is not a lesser included offense 

of aggravated kidnapping, and therefore not dismissing the 

charge of aggravated kidnapping? 

2. Did the District Court err in finding that the 

offense of attempted deliberate homicide was not impliedly 

repealed by the newly enacted offense of criminal 

endangerment? 

3. Did the District Court err in denying defendant's 

motion for mistrial when the prosecution addressed punishment 

in its rebuttal closing argument? 

The victim, L.B., lived in Helena, Montana. Near midnight, on June 10, 1980, L.B. received a phone call from a 

man stating that he had borrowed some car parts and tools 

from her husband and wanted to return them that night. L.B. 

felt uneasy because of the call and called her husband who 
was working in the state of Idaho. He did not recall loaning 

tools to anyone. Her husband called later to make sure she 

was all right. He also asked a male friend, Mr. E., in 

Helena to check on L.B. 

Mr. E. called L.B. shortly after the cal-1 from her 

husband. While he was talking to her, the defendant burst 

into the house through a bedroom window. L.B. testified that 

she recognized defendant as the man who had come to her home 

a week earlier requesting a tour of it because it was for 

sale, and also as the man who made the phone call earlier 

that night. As he approached her, she screamed "Oh no, Oh 

no." Defendant put a knife to L.B.'s throat and then hung up 

the phone. He forced her to leave clad only in a nightshirt 

and without slippers, and took her to his car several blocks 

away. She made several unsuccessful escape attempts. 

Because there are no significant factual issues raised 

by the defendant we will not detail the very extensive criminal conduct of the defendant which extended over a period of 

many hours, starting after 1:00 a.m. Beginning in a vacant 

bus near her home and then continuing in various locations 

around the city, defendant repeatedly committed acts of 

sexual intercourse without consent on L.B., and in addition, 

by force required her to take part in various deviate sexual 

acts. Defendant repeatedly tortured L.R., choked her a 

number of times, burned her body with cigarettes and beat her 

physically with a club. Finally, after driving L.B. several 

miles out of town, defendant slammed her head into a rock and 

stabbed her 15 times in her chest and abdomen. We emphasize 

that the record is devoid of any evidence, or even suggestion 

of evidence, which demonstrates consent or participation in 

any of the conduct by L.B. The bestiality of the conduct on 

the part of defendant is overwhelmingly present in the 

record. We are unable to comprehend the lack of 
consideration for another human being which was demonstrated 

by defendant, and which is apparent even from his own testimony. In the event that defendant finds it appropriate to 

seek further review, we invite any federal court to review 

the extensive transcript in order to gain an adequate understanding of the facts of this case. 

Because of his fear of being caught, defendant concocted 

a story for L.B. to tell Mr. E. in order to explain why she 

hung up on him. Defendant forced L.B. to call Mr. E. and to 

relay the story about friends with whom she left to go drinking in Butte. L.B. attempted to tip off Mr. E. by asking 

questions about his wife although he was unmarried. Mr. E. 

had already called the police and sent them to L.B.'s home. 

Defendant also forced L.B. to call the police with the same 

phony story. As dawn approached, the defendant became nervous and drove L.B. out of Helena into the foothills near 

Canyon Ferry. He stopped when L.B. said that she had to go 

to the bathroom. 

L.B. testified that she next awoke in the bottom of a 

ravine, clad in only her nightshirt, and bleeding from her 

wounds. She testified that she did not move at all that day 

because she was not strong enough to get up. At dusk she 

walked for about half an hour, and during that night alternated between walking and sleeping. Cactus spines punctured 

her bare feet. In the morning she slowly made her way out of 

the ravine to a road. Two people in a pickup truck drove 

past and saw her sitting on the side of the road with blood 

on her head. They rushed her to the hospital, where it was 

discovered she had been stabbed 15 times in her chest and 

abdomen. The hospital physician who treated L.B. testified 

that she had several "potentially fatal stab wounds," had 

lost a "minimum of 25% of her blood volume," and that her 

head wounds would have been potentially fatal had they not 
"occurred on a particularly hard portion of the skull." He 

testified that L.B. probably would not have survived more 

than a few hours, had she not been rescued. 

I 

Did the District Court err in ruling that sexual intercourse without consent is not a lesser included offense of 

aggravated kidnapping, and therefore not dismissing the 

charge of aggravated kidnapping? 

Defendant contends that pursuant to 5 46-11-502, MCA, 

sexual intercourse without consent is a lesser included 

offense of aggravated kidnapping and that he cannot be convicted of both without resulting in double jeopardy. The 

basis of his claim is that the "without consent" element of 

sexual intercourse without consent is established by the 

kidnapping because the taking of someone against her will is 

without consent. At the close of the State's case-in-chief, 

defendant moved to dismiss the charge of aggravated kidnapping for that reason. 

The State argues that in determining if one offense 

includes another, the statutory elements of each offense must 

be analyzed to determine if each offense contains an element 

different from the other. The State refers to a number of 

Montana cases and in particular relies upon State v. Thornton 

(1985), 218 Mont. 317, 708 P.2d 273. Defendant agrees that 

-- Thornton sets forth the appropriate standard. In Thornton 

the standard is discussed at some length as follows: 

Defendant's argument relies upon the holding 

found in Blockburger v. United States (1932), 284 

U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 

309, which states: 

"The applicable rule is that where the same 

act or transaction constitutes a violation of 

two distinct stat,utory provisions, the test to 

be applied to determine whether there are two 
offenses or only one is whether each provision 

requires proof of a fact which the other does 

not. " 

The first sentence of S 46-11-502, MCA, states: 

"When the same transaction may establish the commission of more than one offense, a person charged 

with such conduct may be prosecuted for each such 

offense." The statute goes on to enumerate some 

exceptions to this statement. Defendant, however, 

has not indicated which exception he relies on, but 

his argument appears to center around exception 

(1). This exception states: "[Defendant] may not, 

however, be convicted of more than one offense if . . . one offense is included in the other. 

In a series of recent cases this Court has 

clarified the application of the Blockburger rule 

and S 46-11-502. To determine if one offense is 

includable within another, the analysis looks to 

the statutory elements, not the particular factual 

situation. (Citations omitted. ) If each offense 

contains an element different than the other there 

is no inclusion, even though there may be a substantial overlap in proof. (Citations omitted.) 

The State maintains that the statutory definition of sexual 

intercourse without consent does not require the p,urpose to 

facilitate commission of a felony as defined in this case for 

aggravated kidnapping. In a similar manner, the statutory 

definition of aggravated kidnapping as here charged, does not 

require sexual intercourse without consent, but only the 

purpose to facilitate commission of a felony. We agree. 

Under S 45-5-303(l) (a) and (c) , MCA, the offense of 

aggravated kidnapping is committed when 1) a person knowingly 

or purposely, 2) without lawful authority, 3) restrains 

another person 4) by the use of threats or physical force, 5) 

with the purpose to facilitate commission of any felony. 

Section 45-5-503(1), MCA, provides that a person commits the 

offense of sexual intercourse without consent when he 1) 

knowingly, 2) has sexual intercourse, 3) without consent with 

a person of the opposite sex. We look to the statutes to 
determine if each offense requires proof of a fact which the 

other does not. State v. Madera (1983), 206 Mont. 140, 670 

P.2d 552. 

To prove aggravated kidnapping the State must prove the 

kidnapping was committed with the purpose to facilitate 

commission of any felony. The State need not prove the 

actual commission of a felony. The State need only prove 

that there was the purpose to facilitate or aid in the commission of a felony. As appears from $ 45-5-503(l), MCA, 

that element is not required to prove sexual intercourse 

without consent. 

In order to prove sexual intercourse without consent, 

the State must prove an act of sexual intercourse. That 

element is not required under the aggravated kidnapping 

statute, $ 45-5-303 (1) (a) and (c) , MCA. 

Our comparison of the stat,utory elements of both crimes 

makes it clear that under the Thornton test, each offense 

contains an element different than the other. As a result, 

it is clear that one offense is not included in the other as 

prohibited under (5 46-11-502(1), MCA. That disposes of the 

principal argument on the part of the defendant. 

In addition, on appeal, defendant attempted to argue the 

application of (5 46-11-503(4), MCA, which provides that a 

person may not be convicted of more than one offense if the 

offenses differ only in that one is defined to prohibit a 

designated kind of conduct generally and the other prohibits 

a specific instance of such conduct. As pointed out by the 

State, the defendant did not object on this theory at the 

trial court level. It is true that the district court may 

not be put in error for a ruling that it has not made. 

Nonetheless we will briefly discuss this theory in order to 

eliminate the contention of the defendant. Clearly sexual 

intercourse without consent is not a specific instance of 
aggravated kidnapping. As a result there is a failure to 

meet the definitional provision of § 46-11-503, MCA. 

We therefore conclude that under § 46-11-502, MCA, and 

Thornton, sexual intercourse without consent is not a lesser 

included offense of aggravated kidnapping. We affirm the 

holding of the District Court in so ruling. 

I1 

Did the District Court err in finding that the offense 

of attempted deliberate homicide was not impliedly repealed 

by the newly enacted offense of criminal endangerment? 

The offense of attempt is defined in 5 45-4-103(1), MCA, 

as follows: 

A person commits the offense of attempt when, with 

the purpose to commit a specific offense, he does 

any act toward the commission of such offense. 

A person commits the offense of deliberate homicide as 

defined in § 45-5-102 (I), MCA, if: 

(a) he purposely or knowingly causes the death of 

another human being; or 

(b) he attempts to commit, commits, or is legally 

accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, 

burglary, kidnapping, aggravated kidnapping, . . . or any other forcible felony and in the course of 

the forcible felony or flight thereafter, he or any 

person legally accountable for the crime causes the 

death of another human being. 

Criminal endangerment is defined in 5 45-5-207(1), MCA: 

(1) A person who knowingly engages in conduct that 

creates a substantial risk of death or serious 

bodily injury to another commits the offense of 

criminal endangerment. 

Defendant argues that the intent of the 1987 Montana 

Legislature in enacting the criminal endangerment statute 5 
45-5-207, MCA, was to impliedly repeal the offense of attempted deliberate homicide. This would reduce the penalty 

imposed on defendant from a possible maximum penalty of life 

imprisonment to a maximum penalty of ten years. He contends 

that proof of criminal endangerment would show attempted 

deliberate homicide or vice versa, so it would not make sense 

to say that both offenses still exist under Montana law. 

The State contends that any intention of the legislature 

to repeal an offense must be clear and manifest, which is not 

present in this case. It maintains that the key is whether 

each statute requires proof of an additional fact which the 

other does not require. It argues that because criminal 

endangerment does not require a purposeful act to cause the 

death of a human being, as does attempted deliberate homicide, defendant's argument fails. 

The legislative history does not indicate that the 

creation of the offense of criminal endangerment impliedly 

repealed the offense of attempted deliberate homicide. The 

offense entails a wide variety of offenses, resulting from 

gross negligence and reckless behavior. Judiciary Committee 

Notes, February 5, 1987, page 4. The legislature considered 

endangerment statutes of Colorado, Washington, Oregon, Alaska 

and Arizona in drafting the criminal endangerment statute. 

Those states all consider endangerment as an assault-type 

offense and have classified it as a misdemeanor, gross misdemeanor, and a felony. 

One of the cases analyzed by the legislature was a 

Washington Supreme Court decision. In that case, the defendant fired a .22 rifle at passing cars, parked cars and 

apartment buildings as a Halloween prank. He was convicted 

of assault and reckless endangerment. The reckless endangerment charge was based on the firing of the gun at an inhabited apartment building where one bullet went through a window 
and into a wall. The Court ruled that this did not constitute double jeopardy, holding that "definite punishment" is 

not the same as "double punishment." State v. Turner (1981), 

29 Wash.App. 282, 627 P.2d 1324. 

Washington law defines "reckless endangerment" as 

follows: 

(1) A person is guilty of reckless endangerment 

when he recklessly engages in conduct which creates 

a substantial risk of death or serious physical 

injury to another person. 

(2) Reckless endangerment is a gross misdemeanor. 

Wash. Rev. Code S9A. 36.050 (1975) . The only significant 

difference between the Washington statute and the Montana 

statute is the use of the term "reckless" in the Washington 

statute rather than "knowingly" as defined in Montana. 

Either way it is clear that the statute is created to punish 

reckless or negligent behavior which has the inherent potential of resulting in death or serious bodily injury to another person. Thus, criminal endangerment is clearly 

distinguishable from attempted deliberate homicide because 

the purpose of the behavior itself is different even if the 

result of the behavior may be the same. We affirm the District Court's conclusion that the offense of attempted deliberate homicide was not impliedly repealed by the newly 

enacted offense of criminal endangerment. 

Did the District Court err in denying defendant's motion 

for mistrial when the prosecution addressed punishment in its 

rebuttal closing argument? 

At trial, defendant admitted to committing aggravated 

kidnapping and sexual intercourse without consent. The jury, 

then, only needed to decide whether defendant committed 
attempted deliberate homicide or either mitigated attempted 

deliberate homicide or criminal endangerment. As already 

discussed, defendant adamantly argued that he did not intend 

to kill L.B. so he could only be charged with criminal endangerment. During closing arguments, the State made reference 

to the differences in punishment in these offenses. This was 

the basis of defendant's motion. The pertinent part of the 

disputed closing argument follows: 

State's Closing Argument: 

What about the defendant? Do you believe him? Is 

he a credible witness? Does he have a motive to 

lie? Sure he does. I think he summed it up in his 

statement that he made to [L.R. ] in the car when 

Mr. Sheehy said well what did you talk about? I 

don't know why I am doing this. I just got out of 

jail for doing this. It happens every time I see 

an attractive woman. That is what he said. And 

that is why he is lying in this case. He does not 

want to go back to jail. So he told you a bare 

outline of what happened that night. He admittedto parts of it. He admitted to parts that there 

was physical evidence to substantiate, things that 

he couldn't dispute because the evidence was blatantly there in front of him. And then he minimized the rest of it . . . Defendant's Closing Argument: 

Now--I know Ms. Clemens says Shawn Drew Calwson has 

got a reason to lie. Doesn't want to go back to 

jail when he tells you specifically that he didn't 

have the intent to kill her. [H]e is going back to 

jail. He is going back to jail; has been in jail 

since the 15th of June, 14th of June. He got up 

here and admitted his guilt, admitted that he had 

sexual intercourse without consent, admitted that 

he had aggravated kidnapping. Why? If he intended 

to kill her wouldn't he say I intended to kill her? 

What has he got to gain from that? It has got 

nothing to do with not going back to jail . . . 

State's Rebuttal: 
There is a big difference between criminal endangerment and attempted deliberate homicide. Mr. 

Clawson is worried about how long he is going to be 

in jail. HOW many years he will be there and 

whether he will ever be out again. That is what he 

is worried about. That is why his attorney wants 

you to find him guilty of criminal endangerment and 

not attempted deliberate homicide. 

The State maintains that this was not prejudicial in 

light of the cautionary instructions given to the jury immediately after denying the motion: 

You are not to be concerned with the penalty provided by law for the offenses charged or to speculate on what it might be or should be in this case. 

Imposing sentence within the bounds set by the 

legislature is the exclusive business of the Court 

and has nothing whatever to do with your verdict. 

Your task is to consider the facts and render your 

verdict upon the facts . . . 

You should take the law in this case from the 

instructions alone. You should not give any weight 

to statements of counsel or of anyone else as to 

what the law is, nor should you allow yourselves to 

decide this case contrary to these instructions, 

even though you might believe that the law ought to 

be otherwise. 

The State further points out the District Court's ruling on 

the motion: 

I have no objection to telling the jury that in 

accordance with the instructions that they were 

given that punishment is not their job, it is my 

job. And they are not to consider it. But I do 

not think that a mis-trial should be granted. I 

don't think the jury was in any way prejudiced by 

it and as I did remark at one time the Court's 

instruction refers to mitigated attempted, 
mitigated deliberate homicide and criminal endangerment as being lesser included offenses. From 

that almost any person of average intelligence 

would surmise that the punishment for a lesser 

included offense is less than it is for the main 

crime. I just think that is--that is implied in 

the Court's instructions. So it is just one of 

those things that I think everybody understood. 

The State contends that even if the remarks in closing were 

improper, any error is presumed to be corrected if the District Court gave the jury a proper cautionary instruction. 

There must be a manifest necessity to declare a mistrial 

and the defendant must have been deprived of a fair and 

impartial trial. State v. Brush (1987), 741 P.2d 1333, 1336. 

The test for declaring a mistrial was stated by the 

United States Supreme Court in United States v. 

Perez (1824), 22 U.S. (9 Wheat.) 579, 580: "[Tlhe 

law has invested Courts of justice with the authority to discharge a jury from giving any verdict, 

whenever, in their opinion, taking all the circumstances into consideration, there is a manifest 

necessity for the act, or the ends of public justice would otherwise be defeated. They are to 

exercise a sound discretion on the subject . . . [Tlhe power ought to be used with the greatest 

caution, under urgent circumstances, and for very 

plain and obvious causes; . . . State v. Close 

(1981), 623 P.2d 940, 945-946, 38 St.Rep. 177, 183. 

State v. Doney, (Mont. 1981), 636 P.2d 1377, 1383, 38 St.Rep. 

The references to the differences in punishment were 

made to explain why the defendant had a motive to lie. We 

agree with the District Court's conclusion that there was no 

prejudice to the defendant by the references to punishment. 

Furthermore, the evidence is replete with detailed testimony 

of L.B. which overwhelmingly established the offense of 

attempted deliberate homicide. The District Court promptly 
gave the jury a cautionary instruction admonishing them to 

disregard the State's reference to punishment. We conclude 

that the District Court was correct in denying the defendant's motion for mistrial on this theory. 

We also note that the defendant argued that the action 

of the State in calling the defendant a "liar" was prejudicial. The State's reference to defendant as a "liar" was 

nothing more than an opinion based on the State's analysis of 

evidence, and did not constitute an expression of the State's 

personal opinion of guilt. See State v. Armstrong (1980), 

189 Mont. 407, 616 P.2d 341. We conclude there was no basis 

for mistrial as a result of this action by the State. 

We affirm the District Court. 

We Concur: 4 

Justices 

Justice John C. Sheehy did not participate in this matter.