NO. 91-334 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSEAN DEAN OGLE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas Alan Kragh, Rosscup & Kragh, Polson, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, George Schunk, 

Assistant Attorney General, Helena, Montana 

Larry J. Nistler, County Attorney, Polson, Montana 

Filed: 

submitted on Briefs: June 26, 1992 

Decided: November 12, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the 

Court. 

Appellant Sean Dean Ogle was tried by a jury and convicted of 

sexual assault, a felony, pursuant to g 45-5-502, MCA (1989), in 

the Twentieth Judicial District Court, Lake County. Appellant 

appeals from this conviction. We affirm. 

Appellant offers three issues for this Court to consider. 

1. Was appellant denied his right to a fair trial by 

repeated instances of alleged prosecutorial misconduct? 

2. Did the District Court err by instructing the jury that 

sexual assault was a lesser included offense of sexual intercourse 

without consent? 

3. Did the District Court err by instructing the jury that 

"without consentw was an essential element of the offense of sexual 

assault? 

Appellant lived in Polson with his parents across the street 

from K.B. and S.B. and their children, including their 13-year-old 

adopted daughter, J. C. B. K. B. was the pastor of a local church and 

appellant became active in church activities. At the same time, 

appellant also developed a friendship with J.C.B., who was 

developmentally disabled and needed special education. J.C.B. 

enjoyed fishing and frequently would go fishing at the public boat 

docks near her home. Appellant would sometimes go with J.C.B. and 

play guitar while she fished. 
On October 11, 1990, the family planned to attend a local high 

school basketball game. J.C.B. told her parents that she would 

rather go fishing and they agreed. At some point, appellant said 

that he would watch J.C.B. to ensure her safety. When her parents 

returned from the game, J.C.B. was at home and they did not notice 

anything unusual. 

The following Saturday, S.B. was doing the weekly laundry when 

she found a note in the pocket of J . C. B. ' s jeans. The note was 

addressed to appellant and was signed "your sex girlfriend.'' A few 

days later, J.C.B.'s mother spoke with her about the note and 

during the conversation J.C.B. admitted to having sex with 

appellant. Later in the evening, J.C.B. repeated her story to her 

father, who then informed the Lake County Sheriff's Office. After 

J.C.B. was privately interviewed by Officer Walrod, a Justice Court 

complaint was filed against appellant and he was arrested and taken 

into custody on October 17, 1990. 

The next morning appellant voluntarily confessed during two 

taped interviews to having sexual contact with J. C. B. On the night 

of the arrest, he also confessed to a fellow jail inmate, Corey 

White. At trial, White testified that appellant said he had 

touched J.C.B. with his penis. 

An information was filed in Lake County District Court 

charging appellant with sexual intercourse without consent, a 

felony, and failure to register as a sexual offender, a 

misdemeanor. Appellant pled guilty to the misdemeanor, with 

3 
sentencing deferred until after the completion of trial on the 

charge of sexual intercourse without consent. A jury trial was 

held on January 21, 1991, and appellant was found guilty of the 

lesser-included offense of sexual assault, a felony. 

On direct examination, the Lake County Attorney questioned 

J.C.B. in the following manner: 

We talked about what promising to tell the truth 

"so help you Godg1 meant, remember? 

(Witness nodded.) 

What would it mean if you lied? 

I don't know. 

Would it be a bad thing towards God? 

Yeah. 

Okay. Do you love God? 

Yeah. 

And you're very--you attend church at your father's 

church? 

J.C.B. also testified at trial that appellant placed his penis 

in her vagina and rubbed his penis on her buttocks. This testimony 

was consistent with what J.C. B. had previously told her father, and 

the Lake County Undersheriff, both of whom testified at trial. At 

trial, the appellant denied he had any sexual contact with J.C.B. 

Appellant also testified that after reading a law book 

provided to him on his first night in jail, he decided to confess 

to the lesser-included offense of sexual assault in hope of 

securing a deal with the interviewing undersheriff and receiving 

4 
half the prison sentence possible for sexual intercourse without 

consent. During cross-examination, the following exchange took 

place between appellant and the Lake County Attorney. 

You're married, are you not? 

Yes. 

You have a small baby? 

She has a baby. 

It's not yours? 

It's not mine. 

But she is still married to you? 

I'm not sure. She put in for a divorce and that's 

the last I heard about it. I haven't talked to 

her. She moved. Well, I had asked her for a 

divorce because I caught her in bed with my best 

friend and some other things that happened. 

And you don't find her any more attractive than you 

found [J.C.B.], right? 

I loved my wife a great deal 

You loved [J.C.B.], too, didn't you? 

NO. 

You used her and threw her away the same way you 

threw vour wife awav? 

I never told [Corey White] anything had happened. 

All of those things were lies; is that right? 

I never told Corey White I had anything to do with 

her. I had told Walrod what was necessary to make 

it through to the next day to where I could try and 

fight that tape because I can fight a tape and I 

can't fight death. 
Q. Let's get this straight. [J.C.B.] lied, right? 

A. Apparently, yes. 

Q. Corey White lied? 

A. Yes, and he had plenty of reason to. [Emphasis 

added. ] 

During closing argument the State made the following comments: 

You have to accept his version of the facts as he 

testified today and reject his version of the facts as he 

gave it at other times. You have to find that little 

[J.C. B. 1, when she came in and testified, lied. You have 

to find that Corey White, who heard the confession from 

the defendant, lied. You would have to find that both 

the previous confessions of the defendant on tape are 

lies. 

Today one of the worst lies I would suggest you may 

have heard is when he said he didn't find her desirable. 

During the settling of jury instructions, the prosecution 

requested that certain instructions be given on sexual assault. 

Defense counsel objected to the giving of the instructions without 

explanation. The instructions on sexual assault were given over 

this objection. 

At trial, the jury found the defendant not guilty of sexual 

intercourse without consent, but convicted him of the crime of 

sexual assault, a felony. At sentencing, the District Court found 

appellant to be a persistent felony offender pursuant to 

§ 46-18-501, MCA. The court sentenced appellant to 60 years in the 

Montana State Prison with 20 years suspended. For purposes of this 
appeal, the appellant only appeals his conviction of sexual 

assault. 

Was appellant denied his right to a fair trial by repeated 

instances of alleged prosecutorial misconduct? 

Appellant contends that the State engaged in prosecutorial 

misconduct by eliciting inadmissible evidence with no factual 

basis; characterizing witnesses as liars; using misleading and 

inflammatory argument; expressing personal opinions; and using the 

complaining witness's religious beliefs to enhance her credibility. 

Section 46-20-104(2), MCA, procedurally bars review of alleged 

errors not objected to at trial. 

(2) Upon appeal from a judgment, the court may 

review the verdict or decision and any alleged error 

objected to which involves the merits or necessarily 

affects the judgment. Failure to make a timely objection 

during trial constitutes a waiver of the objection except 

as provided in 46-20-701(2). 

Section 46-20-701 (2) (a) - (c) , MCA, allows claims which are presented 

for the first time on appeal if the error is prejudicial to the 

defendant's guilt and: 

(a) the right asserted in the claim did not exist 

at the time of the trial and has been determined to be 

retroactive in its application; 

(b) the prosecutor, the judge, or a law enforcement 

agency suppressed evidence from the defendant or his 

attorney that prevented the claim from being raised and 

disposed of; or 

(c) material and controlling facts upon which the 

claim is predicated where not known to the defendant or 
his attorney and could not have been ascertained by the 

exercise of reasonable diligence. 

The record reflects that in all of the instances appellant 

claims were prosecutorial misconduct, not one objection was made by 

defense counsel. Appellant's claim does not fall into one of the 

three exceptions listed in S 46-20-701, MCA. 

Appellant also alleges that not withstanding the lack of 

objections at trial, the prosecution' s misconduct amounted to plain 

error. In State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588, we 

stated: 

The plain error doctrine provides a remedy in such 

situations to prevent manifest injustice. When the 

substantial rights of a defendant are involved, the lack 

of timely objection does not preclude us from exercising 

our power of discretionary review to examine any error at 

the trial court level. 

Wilkins, 746 P.2d at 589. We utilize the plain error doctrine only 

when it is necessary to insure a fair and impartial trial. 

Wilkins, 746 P.2d at 589. The plain error doctrine is used 

sparingly and should not be relied upon by counsel. Wilkins, 746 

P.2d at 589. The record does not contain any error not objected to 

that demonstrates an infringement of the substantial rights of 

appellant that persuades us to exercise our discretionary review. 

We hold that appellant was not denied his right to a fair trial. 

Did the ~istrict Court err by instructing the jury that sexual 

assault was a lesser included offense of sexual intercourse without 

consent? 
At the settlement conference for jury instructions, the State 

proposed a series of instructions which sought to include sexual 

assault as a lesser included offense of sexual intercourse. The 

record reflects that defense counsel objected to the giving of the 

lesser included instruction but did not specifically state his 

reasons for the objections. Over defense counsel objections, the 

District Court gave the State's lesser included instructions as 

Court Instructions No. 11 through No. 15. 

Section 46-16-401 (4) (b) , MCA (1989) , requires that counsel has 

a duty to specify the grounds upon which a jury instruction 

objection is based. The statute provides in relevant part: 

On such settlement of instructions, the respective 

counsel or the parties shall specify and state the 

particular ground on which an instruction is objected to. 

It shall not be sufficient to object generally that the 

instruction does not state the law or is against the law, 

but the objection must specify particularly wherein the 

instruction is insufficient or does not state the law or 

what particular clause therein is objected to. 

In absence of a proper objection, the lesser-included offense issue 

was not preserved for appeal in accordance with 5 46-20-701(2), 

MCA. Without discussing whether 45-5-502, MCA (1989), is a 

lesser-included offense of 5 45-5-503, MCA (1989), we hold that 

appellant waived his objection for the purpose of this appeal. 

Did the District Court err by instructing the jury that 

"without consentv1 was an essential element of the offense of sexual 

assault? 
In Instruction No. 12, the District Court stated that an 

element of sexual assault is that the sexual contact was without 

the consent of J.C.B. It has long been the rule in Montana that 

ltwithout consentl9 is not an element of sexual assault where the 

victim is less than 14 years old and the offender is three or more 

years older than the victim. State v. Price (1980), 191 Mont. 1, 

622 P.2d 160; State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339; 

State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367; 

5 45-5-502, MCA (1989). J.C.B. was 13 years old and appellant was 

25 years old at the time of the offense. The court also gave 

Instruction No. 14 which stated that: 

Consent is ineffective, under the offense of Sexual 

Assault, if the victim is less than 14 years old and the 

offender is 3 or more years older than the victim. 

Instruction No. 12 added an extra element for the State to prove 

beyond a reasonable doubt. Thus, the giving of the erroneous 

instruction did not prejudice the appellant. 

In addition, appellant failed to object to this instruction on 

the grounds stated for in this appeal. Defense counsel objected to 

Instruction No. 12 on the grounds that it addressed the 

lesser-included offense. The giving of Instruction No. 14 cured 

any possible error by the erroneous instruction. We hold that the 

District Court did not error in giving Instruction No. 12. 

We affirm. 
We concur: 
November 12, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Thomas A. Kragh 

Attorney at Law 

410 1st St. E. 

Polson, MT 59860 

HON. MARC RACICOT, Attorney General 

George Schunk, Assistant 

Justice Building 

Helena, MT 59620 

LARRY J. NISTLEK, County Attorney 

Lake County Courthouse 

106 Fourth Avenue East 

Polson, MT 59860-2183 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATEnOF MONTANA