No. 89-108
INTHE SUPREME COURT OF THE STATE OF MONTANA
1989

STATE OF MONTANA,
Plaintiff and Respondent,-vsSHAWN DREW CLAWSON,
Defendantand Appellant.

u APPEAL FROM: DistrictCourtof the FirstJudicial Distric$ Inand for the Countyof Lewis & Clark, -4 TheHonorableHenryLoble, Judgepresiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana
For Respondent:
Hon. Marc Racicot, AttorneyGeneral, Helena, Montana Paul D. Johnson, Asst. Atty. General, Helena MikeMcGrath, CountyAttorney; CarolynA. Clemens, Deputy CountyAtty., Helena, Montana

Filed: Submittedon Briefs: Aug. 24, 1989
Decided: October 19, 1989

P

I 1 ClerkJustice 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 defendantguilty 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. Hewas alsodeclared 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 Did the District Court err in finding that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment? 3.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 mistrialwhen the prosecutionaddressedpunishment 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 whowas working inthe stateof Idaho. Hedidnot recall loaning tools to anyone. Herhusband called later tomake sure she

was all right. He also asked a male friend, Mr. E., in Helena tocheck on L.B. Mr. E. called L.B. shortly after the cal-1 from her husband. While he was talking toher, the defendant burst intothehouse through abedroom window. L.B. testified that she recognized defendant astheman who had come toher 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." Defendantput aknife toL.B.'s throat and thenhung up thephone. He forced her toleave clad only ina nightshirt and without slippers, and took her tohis car severalblocks away. Shemade severalunsuccessful escape attempts. Because there are no significant factual issues raised by thedefendantwe willnot detailtheveryextensivecriminal 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 inaddition, by force required her totake part invarious deviate sexual acts. Defendant repeatedly tortured L.R., choked her a number of times, burned herbody with cigarettesand beather physically with a club. Finally, afterdriving L.B. several miles outof town, defendant slammed herhead intoa rock and stabbed her 15 times inher chest and abdomen. Weemphasize thattherecord isdevoid of any evidence, oreven suggestion of evidence, which demonstrates consent or participation in any of the conduct by L.B. The bestialityof the conduct on the part of defendant is overwhelmingly present in the record. We are unable to comprehend the lack ofconsideration for another human being which was demonstrated by defendant, and which is apparent even fromhis 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 understandingof the factsof this case. Because of his fear ofbeing caught,defendant concocted

a story for L.B. to tell Mr. E. in order to explainwhy she hung up onhim. Defendant forced L.B. to callMr. E. and to relay the story about friendswithwhom 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 thebathroom. 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 shedid 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 spinespunctured her bare feet. In the morning she slowlymade her way out of the ravine to a road. Two people in a pickup truck drove past and sawher 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 notbeen 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 cannotbe convicted of both without resulting in double jeopardy. The basis of his claim is that the "withoutconsent" 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 elementsof 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 casesand in particular relies upon Statev. Thornton

(1985), 218 Mont. 317, 708 P.2d 273. Defendant agrees that Thornton sets forth the appropriate standard. In Thornton 

### -- the standard isdiscussed 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 twodistinct stat,utory provisions, the test to be applied to determine whether there are twooffenses or only one iswhether each provision requires proof of a factwhich 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 exceptionhe relies on,but his argument appears to center around exception

(1). This exception states: "[Defendant] may not, however,be convictedofmore than one offense if


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# .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. (Citationsomitted.) 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,urposeto facilitate commissionof a felony as defined in this case for aggravated kidnapping. In a similar manner, the statutory definition of aggravated kidnappingashere charged, doesnot 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) aperson knowingly or purposely, 2) without lawful authority, 3) restrains anotherperson 4) by theuse of threats or physical force, 5) with the purpose to facilitate commission of any felony. Section 45-5-503(1), MCA, provides that aperson commits the offense of sexual intercourse without consent when he 1) knowingly,2) has sexual intercourse, 3) without consentwith

a person of the opposite sex. We look to the statutes todetermine 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,utoryelements 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 thepart of thedefendant. Inaddition,on appeal, defendantattempted 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 ofaggravated kidnapping. As a result there is a failure to meet the definitionalprovision 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 theDistrictCourt in soruling. 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 isdefined in 5 45-4-103(1),MCA,
as follows:

A person commits the offense of attemptwhen,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 humanbeing. Criminal endangerment is defined in 

### 5 45-5-207(1), MCA:

(1) A personwho knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminalendangerment. Defendant argues that the intent of the 1987 Montana Legislature in enacting the criminal endangerment statute 545-5-207, 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 amaximum penalty of ten years. He contends that proof of criminal endangerment would show attempted deliberate homicide orvice versa, so itwould notmake sense to say that both offenses still exist under Montana law. The State contends that any intentionof the legislature to repealan offense must be clear andmanifest, which is not present in this case. Itmaintains 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 recklessbehavior. Judiciary Committee Notes, February 5, 1987,page 4. The legislatureconsidered endangerment statutesof 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 amisdemeanor,grossmisdemeanor, 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 chargewasbased on the firingof the gun at an inhabited apartment building where one bullet went through a windowand into a wall. The Court ruled that this did not constitute double jeopardy, holding that "definite punishment" is not the same as "doublepunishment." Statev. Turner (1981), 29 Wash.App. 282, 627P.2d 1324. Washington law defines "reckless endangerment" as follows:
(1) A person is guilty of reckless endangerment when he recklessly engages in conductwhich creates a substantial risk of death or serious physical injury to anotherperson. (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 punishreckless 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 DistrictCourt'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 denyingdefendant's motion for mistrial when theprosecution addressed punishment in its rebuttal closing argument? At trial, defendant admitted to committing aggravated kidnapping and sexual intercoursewithout consent. The jury, then, only needed to decide whether defendant committedattempted deliberate homicide or either mitigated attempted deliberate homicide or criminal endangerment. As already discussed, defendant adamantly argued thathe did not intend tokillL.B. so he could onlybe charged with criminal endangerment. During closing arguments, the State made reference to the differences inpunishment in these offenses. Thiswas the basis of defendant's motion. The pertinent part of the disputed closing argument follows:

State's ClosingArgument: 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 itup inhis statement that he made to [L.R.] in the car when Mr. Sheehy said well what did you talk about? I don't knowwhy I am doing this. I just got out of jail for doing this. Ithappens every time I see an attractive woman. That is what he said. And that iswhy 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 ClosingArgument:
Now--I knowMs. Clemens says ShawnDrewCalwson 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 killher. [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? Ifhe intended tokillher wouldn't he say I intended to killher? What has he got to gain from that? It has got nothing to do with not going back to jail 

# . . . State'sRebuttal:There is a big difference between criminal endangerment and attempted deliberate homicide. Mr. Clawson isworried abouthow longhe is going tobe in jail. HOW many years he will be there and whether he will ever be out again. That iswhat he is worried about. That is why his attorney wants you to find him guilty of criminal endangermentand not attempted deliberatehomicide.

The State maintains that this was not prejudicial in light of the cautionary instructions given to the jury immediately after denying themotion:

You are not to be concerned with the penalty provided by law for the offenses charged or to speculate onwhat itmight 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 verdictupon the facts

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# .. You should take the law in this case from the instructionsalone. You should not give anyweight to statements of counsel or of anyone else as to what the law is,nor shouldyou allow yourselves to decide this case contrary to these instructions, even thoughyoumight believe that the lawought to be otherwise.

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

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 amanifest necessity to declare amistrial and the defendant must have been deprived of a fair and impartial trial. Statev. Brush (1987),741 P.2d 1333, 1336.

The test for declaring amistrialwas statedby the United States Supreme Court in United States v. Perez (1824), 22 U.S. (9Wheat.) 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 

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[Tlhe power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes;


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# . . State 

### v. Close

(1981), 623P.2d 940, 945-946,38 St.Rep. 177, 183.
Statev. Doney, (Mont.1981), 636P.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 DistrictCourt'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 promptlygave 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'smotion formistrial 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 opinionbased 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), 189Mont. 407, 616 P.2d 341. We conclude there was no basis formistrial as a result of this actionby the State. We affirm the DistrictCourt.

We Concur: 

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Justices

JusticeJohnC. Sheehy did notparticipate in this matter.