NO. 94-088

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Custer,

The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. B. Wheatcroft, Miles City, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Kathy

Seeley, Assistant Attorney General; Garry B. Bunke,

Custer County Attorney, Miles City, Montana

Submitted on Briefs: January 12, 1995

Filed:

Decided: February 8, 1995
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a jury verdict finding defendant guilty

of Sexual Intercourse Without Consent and from the attendant

sentence imposed by the Sixteenth Judicial District Court, Custer

County. We reverse and remand for a new trial.

We consider one issue as dispositive of this case:

Did the District Court err in failing to instruct the jury

correctly on the applicable law of the case?

In January of 1988, Robert Stacy Bradley (Bradley) lived in a

rooming house in Seattle, Washington. The rooming house was owned

by his then current mother-in-law. Bradley was in the process of

divorcing his third wife, Angel, and had responsibility for his

young daughter, Amber, from his second marriage.

While staying at the rooming house, Bradley met Sherri

Hutchins (Sherri) and her brother, Floyd, in the spring of 1988.

Sherri, 14, and Floyd, 15, had been abandoned by their mother when

she left them in the rooming house and subsequently disappeared.

In the spring of 1988, Bradley, Sherri, Floyd, and Amber moved

into an apartment where Sherri, 14, and Bradley, 29, became lovers.

Sherri, Bradley, Floyd and Amber moved from Washington to Tennessee

in July of 1988 because Bradley's family resided in that state.

During the stay in Tennessee, Sherri became pregnant, but

miscarried. Bradley testified that he did not know until the

couple went to Tennessee that Sherri was so young. By that time,

he stated, he felt he should do the "right thing" and marry her.

Because Sherri was underage, the couple sought and found Sherri's

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mother in the hope that she‘would sign for them to be married.

In June of 1989, the couple and Amber moved to Miles City,

Montana, where Sherry's mother lived. Shortly after arriving in

Montana, Sherry became pregnant a second time and the couple wed on

February 20, 1990, five days past Sherri's sixteenth birthday.

Sherri was seven months pregnant. She gave birth on April 3, 1990.

On April 3, 1991, Sherri gave birth to the couple's second

child. The couple moved around from Montana to California and

while living in Washington State, the couple separated in December

of 1991. During this time, Bradley obtained a restraining order

for Sherri and she was unable to see her children for approximately

eight months.

Bradley returned to Miles City and by August of 1992, Sherri

had moved back to Miles City to live with Bradley and the children.

In September of 1992, Sherri initiated contact with the Department

of Family Services (DFS) to have the children removed from the

home. Following an investigation, the DFS removed Sherri and the

children to a shelter in Billings.

Law enforcement questioned Bradley in December of 1992 and on

December 31, 1992, Bradley was charged by information with the

offenses of Bigamy, a misdemeanor; False Swearing, a misdemeanor;

and Sexual Intercourse Without Consent, a felony. At the time the

information was filed, Sherri was pregnant with the couple's third

child.

Bradley moved to have the charges dropped based upon the

spousal exemption in 5 45-5-511, MCA (1989). The State countered

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that Bradley was not divorced from his third wife until February of

1992, two years after the actual marriage to Sherri, and he could

not avail himself of the spousal exemption.

The State did move to dismiss the Bigamy and False Swearing

charges because they had not been initiated within the one-year

statute of limitations for misdemeanors. A jury trial was held on

June 3, 1993, on the charge of Sexual Intercourse Without Consent

because Sherri had been 15 years old when the couple came to Miles

City the first time in 1989. A jury found Bradley guilty and the

court after considerable delay sentenced Bradley on January 7, 1994

to fifteen years in the Montana State Prison, with all but thirty

days suspended. The sentence also contained a litany of conditions

such as therapy for Bradley's host of emotional problems and

registration in a sexual offender program. The court also reserved

the right to restrict defendant's parole upon resentencing after a

violation of his probation terms.

Bradley appeals the District Court's denial of his Motion to

Dismiss, Motion for Directed Verdict, the refusal of defendant's

jury instructions, the jury verdict and the sentencing order.

Did the District Court err in failing to instruct the jury

correctly on the applicable law of the case?

Bradley argues that the court did not instruct the jury on the

correct law of the case. Specifically, the court refused his

instructions based on § 45-5-511, MCA (1989), which contained a

spousal exemption for sexual intercourse without consent. Bradley

contends that his instructions 7, 11, 13, and 14 should have been

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given. The State argues that the above referenced instructions did

not accurately reflect the law or the evidence presented in the

case.

Instructions must be reviewed as a whole and if they fully and

fairly present the law to the jury, the jury has been properly

instructed. State v. Hall (1990), 244 Mont. 161, 172, 797 P.2d

183, 190. To constitute reversible error, the trial court's

actions must affect substantial rights of the party. Davis v.

Church of the Latter Day Saints (19901, 244 Mont. 61, 796 P.2d 181.

First, we note that Bradley's instruction #14 is a general

instruction with little relevance to the case. It is taken from a

general treatise and is not based upon Montana law. The District

Court did not err in excluding it as it is not germane to the

resolution of the issues.

Bradley's instruction #?, which was refused by the District

Court stated:

To convict the defendant of sexual intercourse without

consent, the State must prove the following elements:

First: That the defendant knowingly has [had ?I sexual

intercourse with Sherri Lynn Bradley; and

Second: That Sherri Lynn Bradley wae not the defendant's

spouse; and

Third: That the act of sexual intercourse was without

the consent of Sherri Lynn Bradley. . . . (Emphasis

added.)

Instead of the above instruction, the court gave the State>s

instruction #6:

To convict the defendant of sexual intercourse without

consent, the State must prove the following elements:

1 . That the defendant had sexual intercourse with

Sherry Bradley; and

2 . That the act of sexual intercourse was without the

consent of Sherry Bradley; and

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3 . That the defendant acted knowingly. .

Neither instruction is 100% correct. But the State's instruction

does not reflect the complete law. The court erred in giving the

instruction as it is misleading and acted to prejudice Bradley by

not giving the appropriate law upon which he must be judged.

The statute at issue is 5 45-5-503, MCA. That statute in 1983

read:

Sexual intercourse without consent. (1) A person who

knowingly has sexual intercourse without consent with a

person of the opposite sex, not his soouse, commits the

offense of sexual intercourse without consent. (Emphasis

added.)

In 1985, the legislature removed the phrase "not his spouse" from

subsection one. However, at the same time, they added a new

sentence to subsection one which remained unchanged through 1989.

The 1989 version of that statute reads:

Sexual intercourse without consent. (1) A person who

knowingly has sexual intercourse without consent with a

person of the opposite sex commits the offense of sexual

intercourse without consent. A person may not be

convicted under this section based on the ace of his

soouse as provided in 45-5-501(2)(c). (Emphasis added.)

Bradley argues that he was found guilty because the court did not

instruct the jury properly by including the second sentence of

subsection one in the instructions. We agree with that point of

view.

Likewise, the jury should have been instructed that the law

contained the further exemptions found in § 45-5-511, MCA (1989) :

Provisions generally applicable to sexual crimes. (1)

When criminality depends on the victim being less than 16

years old, it is a defense for the offender to prove that

he reasonably believed the child to be above that age.

Such belief shall not be deemed reasonable if the child

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is less than 14 years old.

(2) Whenever the definition of an offense excludes

conduct with a spouse the exclusion shall be deemed to

extend to persons livinq as husband and wife reqardless

of the leqal status of their relationshiD. . .

(Emphasis added.)

The court instructed the jury on subsection one only by giving the

State's instruction #9 but refused Bradley's instruction #13 which

contained subsection two. Again, neither instruction is correct as

it is written. An instruction which properly presents the law to

the jury would contain both subsections of this 1989 statute. The

question of whether Sherri and Bradley were "living as husband and

wife" in July of 1989 is a question of fact for the jury to

determine.

Because the court prejudiced Bradley by instructing the jury

on an incomplete version of the appropriate law, this case must be

reversed and remanded for a new trial.

Reversed and remanded

We Concur:

1 Chief Justice
February 8, 1995

CERTIFICATE OF SERVICE

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

following named:

J.B. Wheatcroft

Attorney at Law

P.O. Box 1081

Miles City, MT 59301

HON. JOSEPH P. MAZUREK, Attorney General

, Assistant

Jutice Bldg.

Helena. MT 59620

Gamy B. Bunke

Custer County Attorney

1010 Main

Miles City, MT 59301

ED SMITH

CLERK OF THE SUPREME COURT

STATF!jQF MONTANA